Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
ExteNet (California) LLC; 2020-01-16;
MASTER LICENSE FOR WIRELESS FACILITIES ON POLES IN THE RIGHT-OF-WAY between CITY OF CARLSBAD, a California municipal corporation and EXTENET SYSTEMS (CALIFORNIA) LLC, a California limited liability company EFFECTIVE DATE: ,Jantp{j )/;fJ,; , 2020 Jan. 14, 2020 Item #3 Page 5 of 73 TABLE OF CONTENTS 1. General Definitions ................................................................................................................. 7 2. Scope of License .................................................................................................................... 12 2.1. Site License Issuance and Effect.. ................................................................................... 12 2.2. License Area ................................................................................................................... 12 2.2.1. Limitations on License Areas .................................................................................. 12 2.2.2. License Area Condition ........................................................................................... 12 2.2.3. Licensee's Due Diligence ......................................................................................... 13 2.2.4. Certified Access Specialist Disclosure ..................................................................... 13 2.3. Limitations on Licensee's Interests ................................................................................ 13 2.3.1. Limited Interest Created ......................................................................................... 13 2.3.2. Limited Rights Created ............................................................................................ 13 2.3.3. No Impediment or Limitations on City's Municipal Functions ............................... 14 2.3.4. Diminutions in Light, Air or Signal Transmission or Reception ............................... 14 3. Term ...................................................................................................................................... 14 3.1. Master License Term ...................................................................................................... 14 3.2. Site License Term ........................................................................................................... 14 4. License Fee and Other Payments .......................................................................................... 15 4.1. License Fee ..................................................................................................................... 15 4.1.1. License Fee Amount ................................................................................................ 15 4.1.2. Intentionally Omitted ............................................................................................. 15 4.1.3. Intentionally Omitted ............................................................................................. 15 4.1.4. Non-Waiver of Rent ................................................................................................ 15 4.1.5. Renegotiated Rent .................................................................................................. 15 4.1.6. Most Favored Nations ............................................................................................ 16 4.2. Administrative Fees ........................................................................................................ 16 4.2.1. Master License Administrative Fee ......................................................................... 16 4.2.2. Site License Administrative Fee .............................................................................. 17 4.3. Late Charges ................................................................................................................... 17 4.4. Default Interest .............................................................................................................. 17 4.5. Liquidated Charges and Fees ......................................................................................... 18 4.6. Method of Fee Payments to City ................................................................................... 18 5. Use ........................................................................................................................................ 18 5.1. Permitted Use ................................................................................................................ 18 5.2. Prohibition on "Macro Cell" Uses .................................................................................. 18 5.3. Prohibition on Nuisances and Illegal Uses ..................................................................... 19 5.4. Signs or Advertisements ................................................................................................. 19 6. Site Licenses .......................................................................................................................... 19 6.1. City Approval Required .................................................................................................. 19 6.2. Site License Application .................................................................................................. 20 6.3. Site License Application Review Procedures .................................................................. 20 6.3.1. Site License Application Priority ............................................................................. 20 6.3.2. Timeframe for City's Review ................................................................................... 21 6.3.3. Consultation with Other City Departments ........................................................... 21 1 Jan. 14, 2020 Item #3 Page 6 of 73 6.3.4. Amendments to Site License Applications .............................................................. 21 6.3.5. Site License Application Approvals ......................................................................... 21 6.3.6. Site License Application Denials ............................................................................. 22 6.4. Replacement Vertical Infrastructure .............................................................................. 22 6.5. Future Maintenance and Repairs, Replacements, Modifications, Additions and Upgrades to Equipment Installed Pursuant to Valid Site License ............................................................. 22 6.6. Pre-Approved Equipment Installations ................................................................................ 23 7. Equipment Installation .......................................................................................................... 23 7.1. Prior Regulatory Approvals Required ............................................................................. 23 7.2. Acknowledgment Letter as Licensee's Notice to Proceed ............................................. 24 7.3. Installation Work ............................................................................................................ 24 7.3.1. Changes to Approved Plans Required by Regulatory Approvals ............................ 24 7.3.2. Corrections to Approved Plans ............................................................................... 24 7.3.3. Alterations to City Property .................................................................................... 25 7.3.4. Licensee's Contractors ............................................................................................ 25 7.4. Labor and Material Costs ............................................................................................... 25 7.5. Project Managers ........................................................................................................... 25 7.6. Coordination with the City ............................................................................................. 26 7.7. Title to Licensee's Equipment and Other Improvements .............................................. 26 7.8. Prevailing Wages ............................................................................................................ 27 7.8.1. Compliance with Prevailing Wage Policies ............................................................. 27 7.8.2. Senate Bill 854 Notice Requirements ..................................................................... 27 7.8.3. Job Site Notices ....................................................................................................... 28 8. Licensee's Maintenance Obligations .................................................................................... 28 8.1. Equipment Maintenance ................................................................................................ 28 8.2. Damage to Vertical Infrastructure ................................................................................. 28 8.2.1. Notice to City .......................................................................................................... 28 8.2.2. Damage Caused by Licensee ................................................................................... 29 8.2.3. No Right to Repair Vertical Infrastructure .............................................................. 29 8.3. Graffiti Abatement ......................................................................................................... 29 8.4. Maintenance Work Performance Standards ................................................................. 30 9. Utilities .................................................................................................................................. 30 10. Taxes, Assessments and Other Impositions ...................................................................... 30 11. Licensee's Obligations to Maintain Compliance with Laws ............................................... 31 11.1. Compliance with CPUC General Orders ..................................................................... 31 11.2. Compliance with Building and Electric Codes ............................................................ 31 11.3. Compliance with RF Exposure Regulations ................................................................ 31 12. Public Works' Operations .................................................................................................. 31 12.1. City's Access to License Area ...................................................................................... 31 12.2. City's Maintenance, Repairs or Alterations to Vertical Infrastructure ....................... 32 12.3. City's Maintenance, Repairs or Alterations to Other City Property ........................... 32 12.4. Emergencies ................................................................................................................ 32 13. Indemnification .................................................................................................................. 33 13.1. Licensee's Indemnification Obligations ...................................................................... 33 2 Jan. 14, 2020 Item #3 Page 7 of 73 13.2. Licensee's Defense of City .......................................................................................... 33 14. Insurance ............................................................................................................................ 34 15. Limitations on Liability ....................................................................................................... 34 15.1. General Limitation on City's Liability .......................................................................... 34 15.2. Consequential, Indirect or Punitive Damages ............................................................ 34 15.3. No Relocation Assistance ........................................................................................... 35 15.4. Mutual Personal Liability Waiver ................................................................................ 35 16. Hazardous Materials .......................................................................................................... 35 16.1. Hazardous Materials in the License Area ................................................................... 35 16.2. Hazardous Material Release Notice ........................................................................... 36 16.3. Licensee's Hazardous Material Indemnification Obligations ..................................... 36 17. Interference ....................................................................................................................... 37 17.1. Licensee's Obligations Not to Cause Interference ..................................................... 37 17.2. Interference Caused by City ....................................................................................... 37 17.3. Interference Caused by City Access ............................................................................ 38 18. Default ................................................................................................................................ 38 18.1. Defaults and Cure Periods .......................................................................................... 38 18.2. 18.3. 18.4. 18.5 18.6 Licensee's Remedies ................................................................................................... 39 Licensee's Uncured Default and City's Remedies ...................................................... 39 City's Uncured Default and Licensee's Remedies ...................................................... 39 Default Fees ............................................................................................................................. 39 Cumulative Remedies .............................................................................................................. 40 19. Termination ........................................................................................................................ 40 19.1 Master License Termination by Licensee ............................................................................. 40 19.2 Site License Termination by Licensee .................................................................................. .40 19.3. City's Termination Rights Due To Material Interference With City Municipal Functions/Threat To Public Health/Safety/Welfare ......................................................................... .40 20. Assignment and Other Transfers ........................................................................................ 41 20.1. General Restriction on Assignment and Other Transfers ........................................... 41 20.2. General Assignment and Other Transfer Procedures ................................................ 41 20.2.1. Proposed Assignment Notice .............................................................................. 41 20.2.2. City's Response to Proposed Assignment Notice ............................................... 41 20.3. Permitted Assignments .............................................................................................. 41 20.3.1. General Authorization ......................................................................................... 41 20.3.2. Conditions on Permitted Assignments ................................................................ 42 20.4. Effect of Assignment or Other Transfer ..................................................................... 42 20.5. Assumption by Assignee or Transferee ...................................................................... 42 21. Licensee's Customers and Collocators ............................................................................... 43 22. Damage or Destruction of License Area ............................................................................ 43 22.1. City's Rights after Damage or Destruction ................................................................. 43 22.1.1. City's Election to Repair or Replace Vertical Infrastructure ............................... 43 22.1.2. City's Election to Remove Vertical Infrastructure ............................................... 43 22.1.3. City's Election to Remove Equipment.. ............................................................... 44 22.2. Licensee's Rights after Termination ........................................................................... 44 3 Jan. 14, 2020 Item #3 Page 8 of 73 22.3. Licensee's Statutory Waiver ....................................................................................... 44 23. Condemnation ................................................................................................................... 44 23.1. Permanent Takings ..................................................................................................... 44 23.1.1. Termination Rights after Condemnation ............................................................ 45 23.1.2. Award .................................................................................................................. 45 23.1.3. No Statutory Right to Terminate ......................................................................... 45 23.2. Temporary Takings ..................................................................................................... 45 24. Records .............................................................................................................................. 45 24.1. City's Audit Rights of Licensee Accounting Records ................................................... 45 24.2. Equipment Inspections and Audits ............................................................................. 46 24.3. Estoppels ..................................................................................................................... 4 7 25. Rules and Regulations ........................................................................................................ 47 26. Surrender of License Area .................................................................................................. 47 26.1. Licensee's Removal and Restoration Obligations ...................................................... 47 26.2. Abandonment ............................................................................................................. 48 26.3. Hold Over .................................................................................................................... 48 27. Surety Bond ........................................................................................................................ 48 27.1. Surety Bond Amount .................................................................................................. 48 27.2. Bond Amount Replenishment .................................................................................... 48 27.3. Bond Application ........................................................................................................ 49 28. Miscellaneous Provisions ................................................................................................... 49 28.1. Notices ........................................................................................................................ 49 28.2. Waivers ....................................................................................................................... 50 28.3. Integration; Amendments .......................................................................................... 51 28.4. Interpretation ............................................................................................................. 51 28.4.1. General ................................................................................................................ 51 28.4.2. 28.4.3. 28.4.4. 28.4.5. Joint and Several Liability ................................................................................... 51 Captions and Other Reference Material ............................................................. 51 Time ..................................................................................................................... 51 Inclusive Words and/or Phrases .......................................................................... 52 28.5. Successors and Assigns ............................................................................................... 52 28.6. Brokers ........................................................................................................................ 52 28.7. Governing Law; Venue ................................................................................................ 52 28.8. Litigation Fees and Costs ............................................................................................ 53 28.9. Recording .................................................................................................................... 53 28.10. No Third-Party Beneficiaries ........................................................................................ 53 28.11. Survival .......................................................................................................................... 53 28.12. Severability .................................................................................................................... 53 28.13 Jointly Drafted .......................................................................................................................... 54 Exhibit A ........................................................................................................................................... . Exhibit A-1 ......................................................................................................................................... . Exhibit A-2 ........................................................................................................................................ . Exhibit A-3 ........................................................................................................................................ . Exhibit B ........................................................................................................................................... . 4 Jan. 14, 2020 Item #3 Page 9 of 73 1. General. ................................................................................................................................... . 2. Scope and Limits of Insurance. . ............................................................................................ . 3. Additional Policy Provisions Required ................................................................................... . 4. Option to Self-Insure Schedule 1 ........................................................................................................................................ . 5 Jan. 14, 2020 Item #3 Page 10 of 73 MASTER LICENSE AGREEMENT FOR WIRELESS COMMUNICATIONS FACILITIES INSTALLATIONS This MASTER LICENSE AGREEMENT FOR WIRELESS COMMUNICATIONS FACILITIES INSTALLATIONS ("Master License") dated ~tit/I~ ftfh, , 2020 (the "Effective Date") is between the CITY OF CARLSBAD, a California mu~ipal corporation (the "City") and EXTENET SYSTEMS (CALIFORNIA) LLC, a California limited liability company (the "Licensee"). RECITALS A. WHEREAS, technology developments and demand for high-speed mobile data service and capacity has extended beyond the capabilities of traditional macrocell wireless communications facilities. To meet this demand, wireless providers have accelerated their small cell and distributed antenna system ("Small Cell") deployments in the public right-of-way and the City has a clear incentive to develop public-private arrangements that manage these accelerated deployments in a way that preserves local aesthetics and public health and safety while also deriving the benefits of these new technologies for the City's residents to the greatest extent practicable; and B. WHEREAS, Licensee has represented to the City that Licensee has the authority under applicable Laws to install and maintain telephone lines within the State of California, which include communications facilities, in the public right-of-way to provide communications services which may, in part, include Small Cells; and C. WHEREAS, the City owns a substantial number of existing poles in the public right-of-way that are potentially suitable for installing communications facilities within the City's jurisdiction and has a duty under California law to derive appropriate value from the City's property and assets held by the City for the public good; and D. WHEREAS, Licensee desires to install, maintain and operate Small Wireless Facilities on the City's Vertical Infrastructure and Utility Infrastructure; and E. WHEREAS, the parties desire to enter into this Master License to establish a process by which Licensee may request to license from the City individual locations on or in the City's existing polies together with utility Infrastructure, and also to establish the rates, terms and conditions that will be generally applicable to all Vertical Infrastructure and Utility Infrastructure licensed to Licensee by the City; and F. WHEREAS, consistent with California law, the City intends, and Licensee acknowledges, that this Master License will be applicable to only the City's Vertical Infrastructure and Utility Infrastructure, and that the City does not intend this Master License or any Site License to require or be construed to require any revenue-generating consideration to the City as a precondition to access to the public rights-of-way for any telephone corporation, as that term is defined in the California Public Utilities Code; and 6 Jan. 14, 2020 Item #3 Page 11 of 73 G. WHEREAS, consistent with federal and California law, the City does not intend this Master License to grant the Licensee any exclusive right to use or occupy the public rights-of-way within the City's territorial and/or jurisdictional boundaries, and Licensee expressly acknowledges that the City may in its sole discretion enter into similar or identical agreements with other entities, which include without limitation Licensee's competitors; and H. WHEREAS the City and Licensee desire to expedite the deployment of small cell technology in the City while pending legal challenges to FCC Order, FCC 18-133 are addressed; and I. WHEREAS, on _________ 2020, the City Council of the City of Carlsbad adopted Resolution No. _______ , which approved the form and material terms for this Master License to be used in connection with the licensing of Vertical Infrastructure and Utility Infrastructure for wireless facilities, and further delegated authority to the City Manager to enter into such agreements. NOW, THEREFORE, for good, valuable and sufficient consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows: AGREEMENT 1. GENERAL DEFINITIONS "Acknowledgment Letter" means the letter that Licensee submits to the City that indicates the Licensee has obtained all Regulatory Approvals and other requirements more particularly described in Exhibit A-3 (Form of Acknowledgment Letter), and that serves as Licensee's notice to proceed with the installation after the City countersigns the Acknowledgment Letter and delivers it to Licensee. "Additional Fees" means any Late Fees, default interest, reasonable costs in connection with a request for the City's consent to an assignment or other transfer under Section 20 (Assignment and Other Transfers) and Default Fees. "Administrative Fees" means, collectively, the Master License Administrative Fee (as defined in Section 4.2.1) and any Site License Application Fees (as defined in Section 4.2.2). "Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under Common Control with Licensee. "Agent" means a party's agent, employee, director, officer, contractor, subcontractor or representative in relation to this Master License, any Site License or the License Area. 7 Jan. 14, 2020 Item #3 Page 12 of 73 "Approved Plans" means the detailed plans and equipment specifications, which include without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements and other improvements proposed by Licensee and approved by the City in connection with the License Area, as more particularly described in Exhibit A-2 (Licensee's Plans and Specifications) to any approved Site License. "Broker" means any licensed real estate broker or other person who could claim a right to a commission or "finder's fee" in connection with the license(s) or other real estate rights contemplated or conveyed in this Master License. "City Attorney" means the City Attorney of the City of Carlsbad. "City Manager" means the City Manager of the City of Carlsbad. "City Property" means any interest in real or personal property owned or controlled by the City, which includes without limitation any and all (1) land, air and water areas; (2) license interests, leasehold interests, possessory interests, easements, franchises and other appurtenant rights or interests; (3) public rights-of-way or public utility easements; and (4) physical improvements such as buildings, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. "Claim" means any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect. "Commencement Date" means the date on which a Site License commences, which is the earlier to occur of: (i) eighteen (18) months from the date that the City executes the City's Acknowledgment Letter pursuant to Section 7.2 of this Master License, or (ii) the date that Licensee commences the installation of Licensee's Equipment in and upon the Vertical Infrastructure or Utility Infrastructure, as the case may be, pursuant to the applicable Site License. "Common Control" means two or more entities that are Controlled by a same third entity. "Control" means (1) as to a corporation, stock ownership with the right to exercise more than fifty percent (50%} of the total combined voting power of all classes of stock, issued and outstanding, of the controlled corporation; or (2) as to partnerships and other business association forms, more than fifty percent (50%) ownership of the beneficial interest and voting control of such association. "CPUC" means the California Public Utilities Commission established in the California Constitution, Article XII,§ 5, or the CPUC's duly appointed successor agency. "Default Fee" means the same as that term is defined in Section 18.3.4 (Default Fees). 8 Jan. 14, 2020 Item #3 Page 13 of 73 "Environmental Laws" means any Law in relation or connection to industrial hygiene, environmental conditions or Hazardous Materials (as defined in this Master License). "Equipment" means antennas, radios and any associated utility or equipment box, and battery backup, transmitters, receivers, amplifiers, ancillary fiber-optic cables and/or wiring, and ancillary equipment used for radio or other wireless communication (voice, data or otherwise) transmission and/or reception, which includes without limitation the means, devices and apparatus used to attach any Equipment to any licensed Vertical Infrastructure, and any ancillary equipment such as wiring, cabling, power feeds or an similar things, any ground based equipment and/or power pedestals need for the operation of Equipment attached to a Vertical Infrastructure, and any signage attached to such Equipment that may be approved by the City or required by Law. "Expiration Date" means the date on which this Master License will automatically expire. "FCC" means the Federal Communications Commission or its duly appointed successor agency. "FCC Order, FCC 18-133" means the FCC's Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018. "Hazardous Material" means any material that, due to its quantity, concentration or physical or chemical characteristics, is at any time now or hereafter deemed by any local, regional, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws to pose a present or potential hazard to human health, welfare or safety, or to the environment. The term "Hazardous Material" as used in this Master License or any Site License will be broadly construed, and includes, without limitation, the following: (1) any material or substance defined as a "hazardous substance", or "pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or section 25316 of the California Health & Safety Code; (2) any "hazardous waste" listed California Health & Safety Code § 25140; or (3) any petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids. "Indemnified City Parties" means the same as that term is defined in Section 13 {Indemnification). "Investigate and Remediate" means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. "Invitee" means the client, customer, invited guest, tenant, subtenant, licensee, assignee and/or sublicensee of a party in relation to the License Area. 9 Jan. 14, 2020 Item #3 Page 14 of 73 "Late Fee" means a fee that will be charged by the City to Licensee for failure to make timely payment pursuant to the terms set forth in Section 4.3 "Laws" means all present and future statutes, ordinances, codes, orders, policies, regulations and implementing requirements and restrictions by federal, state, county and/or municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. "License Area" means those certain spaces on the City's Vertical Infrastructure, Utility Infrastructure and other City Property, which includes without limitation any conduits, chases, risers, trays, pipes, vaults, pull boxes, hand holes, identified on the Approved Plans as occupied by the Equipment and licensed to Licensee. The parties may use the term "License Area" to refer to those spaces licensed to Licensee under an individual Site License or to refer to all spaces collectively licensed to Licensee under all Site Licenses in connection with this Master License. "License Fee" means the annual fee for each licensed Vertical Infrastructure and Utility Infrastructure authorized under any Site License, as specified in Section 4 (License Fee and Other Payments}. "License Vear" means any 12-month period that begins on the Commencement Date for the applicable Site License. "Licensee's On-Call Representative" mean the person(s} assigned by Licensee to be on-call and available to the City regarding the operation of Licensee's Equipment. Such person(s} shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency and in day-to-day operations of the Equipment. "NESC" means the National Electrical Safety Code, as may be amended or superseded, published by the Institute of Electrical and Electronics Engineers. "New Laws" means any legislative, regulatory, judicial, or other action affecting the rights or obligations of the City or Licensee, or establishing rates, terms or conditions for the construction, operation, maintenance, repair or replacement of Licensee's Equipment on public infrastructure (defined in this Agreement as "Vertical Infrastructure" and "Utility Infrastructure") or in the right- of-way, that differ, in any material respect from the rates, terms or conditions of the Agreement. "OSHA" means the Occupational Safety and Health Administration of the United States Department of Labor, or OSHA's duly appointed successor agency. Pre-Approved Equipment Installation" means any Equipment installation design for Licensee's use of a Vertical Infrastructure and/or Utility Infrastructure which has been approved in writing by the City. 10 Jan. 14, 2020 Item #3 Page 15 of 73 "Regulatory Approvals" means all licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area. "Release" when used with respect to Hazardous Material includes any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment. "RF" means radio frequency or electromagnetic waves. "Site License" means the document in the form of Exhibit A (Form of Site License Agreement) that, when fully executed, incorporates the provisions of this Master License and authorizes Licensee to install, operate and maintain Equipment for the Permitted Use on Vertical Infrastructure and/or Utility Infrastructure, as the case may be, identified in the Site License. "Site License Application" means the same as that term is defined in Section 6.2 (Site License Application). "Site License Effective Date" means the first day of the month after both the City and License fully execute a Site License. As an illustration, and not a limitation, if the last party to execute signs a Site License on February 2, 2019, the Site License Effective Date would be March 1, 2019. "Small Wireless Facilities" means facilities that meet each of the following conditions: (1) the facilities (i) are mounted on structures SO feet or less in height including their antennas or (ii) mounted on structures no more than ten percent (10%) taller than other adjacent structures or (iii) do not extend existing structures on which they are located to a height of more than fifty (SO) feet or by more than ten percent (10%), whichever is greater, (2) each antenna associated with the deployment, excluding associated antenna equipment is no more than three (3) cubic feet in volume or larger at the City's discretion, (3) all other wireless Equipment associated with the structure, including wireless Equipment associated with the antenna and any pre-existing associated Equipment on the structure, is cumulatively no more than twenty-eight (28) cubic feet in volume or larger at the City's discretion. "Term" means the term of this Master License, as defined in Section 3.1 (Master License Term). "Utility Infrastructure" means any and all forms of existing power supply, conduit, or other form of infrastructure fixtures or equipment for the delivery of power or communication services (i) approved by the City for use by Licensee and (ii) reasonably related to the operation of a Vertical Infrastructure or otherwise located in the public right of way or other location controlled or owned by City and reasonably capable of being used in connection with a Vertical Infrastructure. "Vertical Infrastructure" means all poles or similar facilities owned or controlled by the City and located in the public rights-of-way or public utility easements and meant for, or used in whole or 11 Jan. 14, 2020 Item #3 Page 16 of 73 in part for, communications service, electric service, lighting, traffic control or similar functions, except that "Vertical Infrastructure" shall not include traffic signals. 2. SCOPE OF LICENSE 2.1. Site License Issuance and Effect Pursuant and subject to the terms and conditions in this Master License, the City, as the Vertical Infrastructure owner, will issue one or more Site Licenses, which will grant Licensee a non- exclusive license to access, use, replace, upgrade and occupy certain space on the Vertical Infrastructure and Utility Infrastructure, as provided herein and the individual Site License(s) signed by the parties pursuant to this Master License for the Permitted Use and to install, maintain and operate the Equipment as shown in the Approved Plans attached to such Site License(s). The license granted herein is revocable only in accordance with the terms and conditions of this Master License. After the City issues a Site License to Licensee, the City shall not grant any third parties any present possessory rights or privileges to use or occupy the same space used or occupied by Licensee as shown in the Approved Plans; provided, however, the City may grant rights or privileges to use other spaces on the same Vertical Infrastructure or Utility Infrastructure for any other purpose except to the extent expressly provided otherwise in this Master License. 2.2. License Area 2.2.1. Limitations on License Areas This Master License applies to only Vertical Infrastructure and Utility Infrastructure identified in final and fully executed Site Licenses. This Master License does not authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any fully executed Site Licenses. Licensee expressly acknowledges and agrees that the City will not be obligated to issue any Site License or other license to Licensee for any purpose related to any traffic signal or decorative pole, which includes any Vertical Infrastructure or light standard with ornate features or characteristics designed or intended to enhance the appearance of the pole, light standard or other Vertical Infrastructure. 2.2.2. License Area Condition Licensee expressly acknowledges and agrees to enter on to and use the License Area in its "as-is and with all faults" condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area's condition or suitability for Licensee's use. Licensee expressly acknowledges and agrees that neither the City nor its Agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or implied, with respect to the License Area's physical, structural or environmental condition, the License Area's present or future suitability for the Permitted Use or any other matter related to the License Area. 12 Jan. 14, 2020 Item #3 Page 17 of 73 2.2.3. Licensee's Due Diligence Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the License Area's condition and suitability for Licensee's intended use, and that Licensee relies solely on its due diligence for such determination. Licensee further expressly represents and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section 5 in this Master License. 2.2.4. Certified Access Specialist Disclosure Pursuant to California Civil Code § 1938, as may be amended or superseded, and to the extent applicable to this Master License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected any License Area in whole or in part to determine whether it meets all applicable construction-related accessibility requirements. 2.3. Limitations on Licensee's Interests 2.3.1. Limited Interest Created Licensee expressly acknowledges and agrees that: (1) Licensee does not have any rights to use or interest in any Vertical Infrastructure, Utility Infrastructure or other City Property for any purpose whatsoever until and unless the City issues a Site License that covers such Vertical Infrastructure, Utility Infrastructure or other City Property; and (2) neither this Master License nor any Site License issued pursuant to this Master License creates or will be deemed to create any leasehold, easement, franchise or any other possessory interest (whether present, future, contingent or otherwise) or real property interest whatsoever in the License Area. 2.3.2. Limited Rights Created Any Site License the City approves pursuant to this Master License grants Licensee only a non- possessory, non-exclusive and revocable license to enter on to and use the License Area for the Permitted Use in accordance with the terms and conditions in this Master License and the applicable Site License. Licensee expressly acknowledges and agrees that: (1) neither this Master License nor any Site License will be coupled with an interest; (2) the City retains legal possession and control over all Vertical Infrastructure and Utility Infrastructure for the City's municipal functions, which will be superior to Licensee's rights and interest in the Vertical Infrastructure and Utility Infrastructure, if any, at all times; (3) subject to the terms and conditions in this Master License, the City may terminate a Site License in whole or in part at any time under the terms, conditions, and restrictions set forth in Section 19.3; (4) except as specifically provided otherwise in this Master License, the City may enter into any agreement with third parties to use and/or occupy any Vertical Infrastructure, Utility Infrastructure and/or other City Property; and (5) 13 Jan. 14, 2020 Item #3 Page 18 of 73 neither this Master License nor any Site License creates or will be deemed to create any partnership or joint venture between the City and Licensee. 2.3.3. No Impediment or Limitations on City's Municipal Functions Except as specifically provided otherwise in this Master License, neither this Master License nor any Site License will limit, alter or waive the City's absolute right to use any License Area, in whole or in part, as infrastructure established and maintained for the City's and the public's benefit. 2.3.4. Diminutions in Light, Air or Signal Transmission or Reception In the event that any existing or future structure diminishes any light, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Site License, the City shall have no liability to Licensee whatsoever and such diminution will not affect this Master License, any Site License or Licensee's obligations except as may be expressly provided in this Master License. 3. TERM 3.1. Master License Term This Master License will commence on the Effective Date and automatically expire in five (5) years from the Effective Date (the "Expiration Date"), unless lawfully terminated sooner, in accordance with this Master License ("Initial Agreement Term"). The term will automatically renew for five (5) consecutive five (5) year extensions ("Renewal Terms") upon the same terms and conditions stated herein, unless Licensee provides written notice to the City at least sixty (60) days prior to the expiration of the Initial Agreement Term or any subsequent Renewal Term, of Licensee's intent not to renew the Master License. Licensee shall not be entitled to any further automatic extensions upon the expiration of the fifth and final five-year Renewal Term. 3.2. Site License Term Each Site License will commence on its Site License Effective Date and will have an initial term of five (5) years, unless earlier terminated in accordance with this Master License. The term of each Site License will automatically renew for five (5) consecutive five-year periods (each a "Site License Renewal Term") unless Licensee provides written notice to the City at least sixty (60) days prior to the expiration of the initial term or the Site License Renewal Term, of Licensee's intent not to renew the Site License term. In the event this Master License expires or is terminated, its terms and conditions shall survive and govern with respect to any Site License(s) entered into hereunder until such Site License(s) expire or terminate. As an illustration and not a limitation, a Site License entered one year before the Master License expires would have four years left on its initial term and five (5) Site License Renewal Terms, and otherwise remain subject to all the applicable terms and conditions of this Master License. As the parties acknowledge that the Site 14 Jan. 14, 2020 Item #3 Page 19 of 73 License Effective Date and the Commencement Date for a Site License may not be the same date, upon written request of either party, the parties shall confirm in good faith the Commencement Date of the applicable Site License. 4. LICENSE FEE AND OTHER PAYMENTS 4.1. License Fee 4.1.1. License Fee Amount During any period in which the FCC Ruling {FCC 18-133) is in effect, the Licensee shall pay rent as described in this paragraph. Licensee shall pay to the Licensor the base amount of Two Hundred and Seventy and 00/100 Dollars ($270.00) per calendar year for each Site License. The base amount under all Site License's shall be subject to an annual adjustment of three percent {3%) applied on each anniversary of the Commencement Date. Any new Site License entered into during a given year shall commence at the then-current rate adjusted by this section (the "Rent"). Rent for the first calendar year of a Site License for each location shall be pro-rated based on the number of days covered from the Site License Effective Date to December 31st. The first payment of Rent shall be paid on the Site License Effective Date. Every Payment of Rent, after the initial payment, shall be due and payable in advance on January 1 of each calendar year throughout the term of each such Site License. There shall be no refunds of Rent paid due to the termination or expiration of the Master License for any reason whatsoever. 4.1.2. 4.1.3. 4.1.4 Intentionally Omitted Intentionally Omitted Non-Waiver of Rent Receipt of any Rent by Licensor, with or without knowledge of any breach of this Master License by Licensee, or of any default on the part of Licensee in the observance or performance of any conditions or covenants of this Master License, shall not be deemed a waiver of any provision of this License. 4.1.S Renegotiated Rent In the event the portion of the FCC Declaratory Ruling {FCC 18-133) that regulates the Rent is reversed in a final unappealable order of the FCC or by a court of competent jurisdiction, and for so long as no legal or regulatory requirement exists that would constrain or otherwise limit the Rent that the City may charge Licensee for the right to place Small Wireless Facilities on the City's property in the public rights of way, the parties agree to determine a renegotiated Rent payment for all Site Licenses, provided that the Licensee is not in default or breach of any term, condition, covenant or provision of this Master License per section 18 below ("Renegotiated Rent"). Licensor and Licensee shall meet and confer to negotiate in good faith to determine the 15 Jan. 14, 2020 Item #3 Page 20 of 73 Renegotiated Rent. If within ninety (90) days after delivery of a request for renegotiation by either party, the parties are unable to agree upon an amendment to this Master License, either party may send a written notice of impasse ("Notice of Impasse") to the other. Within thirty (30) days after the date of the Notice of Impasse either party may request binding mediation or binding arbitration of the issues through Judicial Arbitration and Mediation Services ("JAMS") in San Diego County, California, or any other entity offering dispute resolution procedures as may be acceptable to the City and Licensee in writing. Arbitration shall be used if the parties cannot mutually agree to mediation. The cost of the mediation or arbitration shall be shared equally by the parties. If neither party has requested mediation or arbitration within thirty (30) days after the Notice of Impasse, then thereafter, either party may pursue all available remedies at law or in equity, including regulatory or judicial relief. 4.1.S(a) The City agrees that irrespective of whether the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Renegotiated Rent shall be due for any periods during which the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) were in effect during the Initial Agreement Term of this Master License. However, if Licensee has paid the Rent pursuant to the provisions of the FCC Declaratory Ruling (FCC 18-133) per Section 4.1.1 above for a calendar year, and the portion of the FCC Declaratory Ruling (FCC 18-133) that regulates the Rent is reversed in a final and unappealable order of the FCC or a court of competent jurisdiction during the same calendar year, Licensee shall pay the difference between the Rent and the Renegotiated Rent for the period from the date the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) cease to be effective, until December 31 of that year ("Rent Adjustment"). Such Rent Adjustment shall be paid to the City on January 1 of the following year. 4.1.6. Most Favored Nations The City hereby represents and warrants as of Effective Date of this Master License, and covenants and agrees from and after the Effective Date of this Master License, that none of the rates or fees offered to any other entity for a Master License for the deployment of small cell technology in the City, or a similar agreement designed to advance the deployment or small cell technology in the City while pending legal challenges to FCC Order, FCC 18-133 are addressed, is or will be more favorable than the License Fee under this Master License. Additionally, if the City agrees to a rate or fee that is more favorable than the License Fee under this Master License for the deployment of small cell technology in the City, then Licensee shall be entitled under this Master License to such rate or fee on and after the date such rate or fee becomes effective. 4.2. Administrative Fees 4.2.1. Master License Administrative Fee At the time Licensee delivers to the City a partially executed counterpart to this Master License, Licensee shall also deliver to the City a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars ($8,000.00) (the "Master License Administrative Fee"), which the City represents as payment in full of Licensee's share of the City's costs to prepare, negotiate and 16 Jan. 14, 2020 Item #3 Page 21 of 73 execute this Master License. The City will not be obligated to execute this Master License until the City receives the Master License Administrative Fee; however, the City will return the Master License Administrative Fee to Licensee if for any reason or no reason, the City does not execute this Master License. 4.2.2. Site License Application Fee At the time Licensee delivers to the City a Site License Application, Licensee shall pay to the City a non-refundable application fee of Two Hundred and Fifty Dollars ($250) per Site License Application for proposed Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) (the "Site License Application Fee"), which the City represents as payment in full of Licensee's share of the City's costs as it relates to the Site License granted in this Agreement, and may be in addition to regulatory permit fees required by any agency, including the City of Carlsbad. 4.3. Late Charges In the event that Licensee fails to pay any License Fee, Additional Fee, Administrative Fees or any other amount payable to the City within thirty (30) days after Licensee's receipt of the City's written notice that such amounts are due and unpaid, then thereafter a fee will be charged to Licensee for failure to make timely payment ("Late Fee"). Late Fee amounts will be equal to five percent (5%) of unpaid amounts. 4.4. Default Interest Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City other than Late Fees will bear interest at ten percent (10%) per annum (simple interest) from the due date when not paid within 15 days after due and payable to the City; provided, Licensee is only subject to this interest if the City notifies Licensee in writing of any unpaid amounts and Licensee does not pay within 15 days after Licensee's receipt of such notice. Any sums received shall be first applied towards any interest, then to the late charge and lastly to principle amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. 17 Jan. 14, 2020 Item #3 Page 22 of 73 4.5. Liquidated Charges and Fees The parties agree that the Additional Fees payable under this Master License represent a fair and reasonable estimate of the administrative costs that the City will incur in connection with the matters for which they are imposed and that the City's right to impose the Additional Fees is in addition to, and not in lieu of, any other rights it may have under this Master License. Furthermore: THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY'S ACTUAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING FROM LICENSEE DEFAULTS AND OTHER ADMINISTRATIVE MATTERS UNDER THIS MASTER LICENSE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. BY PLACING THEIR INITIALS BELOW, EACH PARTY'S AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT THE PARTIES HAVE AGREED, AFTER A NEGOTIATION, ON THE AMOUNT OF THE ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY'S ADDITIONAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT. Licensee 61° ( tl) City ____ _ 4.6. Method of Fee Payments to City Licensee shall pay all License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City in cash or other immediately available funds by either: (1) local check payable to the City of Carlsbad or (2) electronic wire transfer. Any payment made with a dishonored check will be deemed unpaid. 5. USE 5.1. Permitted Use Licensee may use a License Area, including approved Vertical Infrastructure and Utility Infrastructure solely for the installation, construction, use, maintenance, operation, repair, modification, replacement and upgrade of Equipment for the purpose of providing wireless, voice, data, messaging, or similar type of wireless service now or in the future offered to the public in general using spectrum radio frequencies licensed or authorized by the FCC (the "Permitted Use") in compliance with this Agreement, the applicable Site License Agreement, all applicable Laws, and any conditions in any Regulatory Approvals and for no other use whatsoever without the City's prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason. 5.2. Prohibition on "Macro Cell" Uses The City and Licensee intend this Master License and any Site License to cover only "Small Wireless Facilities" and/or distributed antenna system installations, as those terms are defined by the FCC. Licensee expressly acknowledges and agrees that the Permitted Use under this 18 Jan. 14, 2020 Item #3 Page 23 of 73 Master License does not include the right to use any Vertical Infrastructure as a support structure for a "macro cell" or a traditional wireless tower typically constructed on private property. 5.3. Prohibition on Nuisances and Illegal Uses Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable judgment; however, the City acknowledges and agrees that the Permitted Use is not and shall not, in and of itself, be considered a nuisance. Licensee shall take all precautions to eliminate any nuisances or hazards in connection with its uses and activities on or about the License Area. 5.4. Signs or Advertisements Licensee acknowledges and agrees that its rights under this Master License and any Site License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area, except as may be specifically authorized under this Master License, any Site License or as may be required for compliance with any applicable Laws. 6. SITE LICENSES 6.1. City Approval Required Licensee shall not have any right to use the License Area in whole or in part for any purpose until and unless the City approves a Site License that covers the License Area. Licensee may obtain a Site License only during the term of this Master License and only after the City approves a Site License Application as provided in this Section 6. Subject to any express limitations in this Master License, the City will not be obligated to subordinate its municipal functions in any manner whatsoever to Licensee's interest under any Site License. The City shall not be obligated to consider or approve any Site License Applications after this Master License expires or is terminated. When the City considers whether to approve or disapprove any Site License Application, the City may consider any matter that affects its municipal functions, which include without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance with any applicable Laws; (3) impacts on the City's street light, traffic control or other municipal operations; (4) any potential hazards or unsafe conditions that could result from Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic impacts, provided the proposed Equipment is not in conformance with objective design standards adopted by the City; (6) the additional load on the Vertical Infrastructure the proposed Equipment would create; and (7) any municipal plans for the Vertical Infrastructure, other City Property or the public right-of- way in proximity to the subject Vertical Infrastructure. All Utility Infrastructure approved by the City in Approved Plans for Licensee's use with a Vertical Infrastructure for a Site License under this Master License shall be protected with fusing. 19 Jan. 14, 2020 Item #3 Page 24 of 73 6.2. Site License Application A complete Site License Application must include the following: (1) two partially executed duplicate counterparts of a Site License in the form attached as Exhibit A to this Master License, together with the following: (a) a fully completed Exhibit A-1, which shall contain a summarized list that identifies all Vertical Infrastructure and Utility Infrastructure serving the Vertical Infrastructure, as the case may be, covered under the Site License Application; (b) a fully completed Exhibit A-2, which shall contain detailed construction plans for the proposed installation(s), including concealment elements consistent with City standards and a detailed traffic control plan for all work on and adjacent to City roadways, and an inventory for all proposed Equipment to be installed on the Vertical Infrastructure covered under the Site License Application; and (c) the Site License Application Fee; (2) all other information and materials required for a complete application for all Regulatory Approvals issued by the City's departments, which the City may update from time-to-time in accordance with applicable Laws; and 6.3. Site License Application Review Procedures 6.3.1. Site License Application Priority Licensee expressly acknowledges that the City either already has or may in the future enter into similar master license agreements for its Vertical Infrastructure with other persons or entities, and that Licensee and such third parties may from time-to-time desire to license the same Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) from the City. To promote a fair and competitively neutral process, the City shall implement a first-in-time prioritization process as provided in this Section 6.3.1. The City shall review each Site License Application, which includes without limitation any Site License Applications submitted by other licensees, in the order received. Each Site License Application will be date and time stamped when received by the City, and such stamp shall control the Site License Application's priority relative to other Site License Applications. In the event that the City receives two Site License Applications for the same Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), the applications with lower priority will be held in abeyance until the higher-priority application is withdrawn, denied or timed-out as provided in this Master License, at which time the City will commence to review the 20 Jan. 14, 2020 Item #3 Page 25 of 73 next-highest priority Site License Application for that Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be). 6.3.2. Obtaining Required Permits The City will review complete Site License Application within applicable timeframes and pursuant to applicable Law including the FCC Order, FCC 18-133, taking into account any tolling periods for such timeframes. Licensee shall use best efforts not to submit successive Pole License Applications if those Pole License Applications would collectively cover 15 or more Poles, and will grant the City a reasonable extension of the applicable timeframe for the City's review if such successive Pole License Applications are submitted. 6.3.3. Consultation with Other City Departments The City, as the licensor under this Master License, may consult with other departments within the City with authority over a site that is the subject of a proposed Site License to assess whether Licensee's proposed Equipment poses any concerns, which includes without limitation any concerns about aesthetics, historic or environmental impacts, traffic control, pedestrian access and general right-of-way management. Licensee acknowledges that any consultation with any other City departments in accordance with this Section 6.3.4 and any actions or failures to act by the City that may result from such consultations would be as the Vertical Infrastructure owner and not an exercise of the City's regulatory authority. 6.3.4. Amendments to Site License Applications In the event that the City determines for any reason that the Site License Application is incomplete or the Permitted Use at any particular proposed License Area would impede its municipal functions, the City will provide notice to Licensee within fourteen (14) business days of submittal of such Site License Application. 6.3.5. Site License Application Approvals In the event that the City approves a Site License Application, the City will return one fully executed Site License to Licensee. Such approval may occur before or simultaneous with any approvals or denials for any Regulatory Approvals issued by the City in its regulatory capacity. Licensee acknowledges and agrees that the City's decision to approve or disapprove any Site License Application is not, and will not be deemed to be, a regulatory determination subject to any administrative appeal, but is an exercise of the City's authority over its Vertical Infrastructure as its personal property. In the event that Licensee fails to commence construction pursuant to the Site License within eighteen (18) months from the date the City fully executes the Acknowledgment Letter, then the Site License shall automatically expire. Licensee shall commence construction pursuant to the Site License on the later to occur of (i) the time to commence construction, if any, as may be contained in the applicable permit for the construction of the Equipment, and (ii) twelve (12) months from the date the City fully executes the 21 Jan. 14, 2020 Item #3 Page 26 of 73 Acknowledgment Letter unless such time period is extended as mutually agreed by the City and Licensee. Otherwise the Site License shall automatically expire. Licensee shall not be entitled to any refund for any fees, which include without limitation the License Fee, paid in connection with a Site License that expires under this Section 6.3.6. Nothing in this Section 6.3.6 is intended to prohibit or prevent Licensee from submitting a new Site License Application for the same or substantially the same Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) as those covered under a Site License that expired pursuant to this Section 6.3.6. 6.3.6. Site License Application Denials Subject to applicable state and federal laws, Licensee acknowledges that the City reserves the absolute right to disapprove any Site License Application in whole or in part when the City determines in its sole judgment that the proposed Equipment would unreasonably interfere with the City's municipal functions or create a hazardous or unsafe condition. The City shall provide Licensee with a written denial that states the basis for the denial. 6.4. Replacement Vertical Infrastructure In the event that Licensee desires to replace any existing Vertical Infrastructure, or in the event that the City requires Licensee to replace any existing Vertical Infrastructure as a condition on the City's approval for a Site License, Licensee shall: (1) design and/or procure the replacement Vertical Infrastructure to be (a) substantially the same as the existing Vertical Infrastructure to be replaced, (b) consistent with the City's specifications for similar Vertical Infrastructure, and (c) consistent with the City's objective design standards; and (2) install the replacement Vertical Infrastructure at Licensee's sole cost and expense and in accordance with all applicable provisions in this Master License, which includes without limitation Section 7 (Equipment Installation). After Licensee installs any replacement Vertical Infrastructure, the City will have the right to inspect the improvements and installation work and accept, reject and require corrections to such improvements or installation work. Licensee shall make any and all necessary corrections to any replacement Vertical Infrastructure within 60 days after a rejection by the City. Paying for the cost of the replacement Vertical Infrastructure does not provide Licensee with any ownership interest in the replacement Vertical Infrastructure. The City shall be deemed to own the replacement Vertical Infrastructure. Licensee acknowledges and agrees that the City's approval of the Site License will be the only consideration due to Licensee in exchange for transferring title to any replacement Vertical Infrastructure to the City, and Licensee will not be entitled to any additional pecuniary or non-pecuniary consideration. 6.5. Future Maintenance and Repairs, Replacements, Modifications, Additions and Upgrades to Equipment Installed Pursuant to Valid Site License Without the requirement of obtaining the City's prior consent, Licensee shall have the right to (a) perform routine maintenance and repair of any Equipment installed on a Vertical Infrastructure and/or Utility Infrastructure pursuant to a valid Site License, and (b) perform "like-for-like" 22 Jan. 14, 2020 Item #3 Page 27 of 73 replacements of Equipment so long as (i) any such "like-for-like" replacement does not materially alter the size, height, and weight of the installed Equipment, and (ii) the resulting installation does not increase the load on the applicable Vertical Infrastructure or the utilization of the Utility Infrastructure beyond the loading or utilization, if any, that was established in the original Site License Application. Any other modification, addition or upgrade to Licensee's Equipment installed on a Vertical Infrastructure and/or Utility Infrastructure pursuant to a valid Site License shall require the City's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding any modification, addition and/or upgrade rights granted to License under this Master License, all work performed by or on behalf of Licensee pursuant to this Master License and/or a Site License shall be subject to all applicable permits and other City approvals required for the protection of public health and safety, including, without limitation, encroachment permits, excavation permits, traffic control permits and construction permits. In no event shall Licensee be required to submit a new Site License Application for routine maintenance and repair, "like-for-like" replacements, modifications, additions, or upgrades to Equipment installed pursuant to a valid Site License. 6.6 Pre-Approved Equipment Installations From time to time during the Term, Licensee may propose Equipment installation designs to the City to become a Pre-Approved Equipment Installation upon the City's prior written consent. Any such Licensee proposed Equipment installation designs that become a Pre-Approved Equipment Installation shall comply with then existing design guidelines in the City Council Policy No. 64, which may be amended from time to time provided that such guidelines comply with applicable Laws including the FCC Order, FCC 18-133, and shall not require an amendment to this Master License. Design guidelines applicable to Small Wireless Facilities shall be: (i) reasonable, (ii) no more burdensome than those applied to other types of infrastructure deployments, and (iii) objective and published in advance. Licensee hereby acknowledges that the City considers physical dimensions, coloring and shrouding as concealment elements, and that such concealment elements are a material factor in the City's decision to provide its written consent to any Pre-Approved Equipment Installation. Once an Equipment installation design has become a Pre-Approved Equipment Installation for Licensee's use of a Vertical Infrastructure and/or Utility Infrastructure, then Licensee shall be allowed to install an Equipment installation using any such Pre-Approved Equipment Installation without further land use review or approval by the City, subject to space and structural capacity and loading review by the City during the building permit review process. All other municipal reviews and approvals, including the execution of a Site License, building permits and right of way permits, shall apply to the installation of any Pre- Approved Equipment Installation. 7. EQUIPMENT INSTALLATION 7.1. Prior Regulatory Approvals Required Licensee shall not commence any installation, construction, repair, upgrade, maintenance or modification or other work on or about the License Area until and unless Licensee first obtains 23 Jan. 14, 2020 Item #3 Page 28 of 73 all necessary prior Regulatory Approvals required by the City in its regulatory capacity, which includes without limitation any encroachment permits, building permits, excavation permits, water or sewer permits, electrical permits and any other permits or approvals issued by the City. Any installation, construction and other work performed by Licensee or its Agents or Invitees without such Regulatory Approvals will be a default under this Master License in addition to any other liabilities or penalties the City, in its regulatory capacity, may impose on Licensee for the same acts or omissions. 7.2. Acknowledgment Letter as Licensee's Notice to Proceed After Licensee obtains all necessary prior Regulatory Approvals, Licensee shall tender a partially executed Acknowledgment Letter to the City that includes (i) Licensee's insurance certificates, (ii) insurance certificates of Licensee's contractor, (iii) the License Fee for the first License Year; and (iv) evidence reasonable satisfactory to the City that the required Surety Bond under Section 27.1 of this Master License has been delivered to the City. The City shall use reasonable efforts to review, countersign and deliver the fully executed Acknowledgment Letter to Licensee within ten {10) business days from the date on which the City receives a partially executed Acknowledgment Letter with all required attachments. Licensee shall not commence any work on or about the License Area until and unless Licensee first obtains a fully executed Acknowledgment Letter from the City. Such fully executed Acknowledgment Letter will serve as Licensee's notice that Licensee has the right to proceed with its installation work. 7.3. Installation Work Licensee shall perform all installation, construction and other work in connection with the License Area in strict compliance with the Approved Plans and in a diligent, good and workmanlike manner. 7.3.1. Changes to Approved Plans Required by Regulatory Approvals Licensee may amend any Approved Plans when such changes are required to obtain or maintain compliance with Regulatory Approvals necessary to install the Equipment, so long as Licensee obtains the City's prior written consent, which the City shall not unreasonably withhold. 7.3.2. Corrections to Approved Plans Licensee shall have the obligation to correct any errors or omissions in any Approved Plans and related Regulatory Approvals. Licensee shall immediately send written notice to the City in the event that Licensee discovers any such defects. Any Approved Plans and/or amendments to Approved Plans by the City will not release or excuse Licensee's obligations under this Section 7.3.2. 24 Jan. 14, 2020 Item #3 Page 29 of 73 7.3.3. Alterations to City Property Licensee shall not remove, damage, or in any manner alter any City Property without prior written consent from the City and any other public agencies with jurisdiction over the subject City Property, unless otherwise allowed herein. The City may withhold its consent in its sole and absolute discretion, and may reasonably condition its consent in each instance based on scope and nature of the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any reason and through any cause. 7.3.4. Licensee's Contractors Licensee shall use only qualified and trained persons and appropriately licensed contractors for all installation, construction and other work performed on or about the License Area. At least five (5) business days before to any installation, construction and other work commences on or about the License Area, Licensee shall provide the City with: (1) a schedule with all activities to be performed in connection with the installation, construction and other work: and (2) a comprehensive list with all the names, contractors' license numbers, contact information, and business addresses for all contractors and all subcontractors who will perform the installation, construction and other work. 7.4. Labor and Material Costs Licensee shall be responsible for all direct and indirect costs (labor, materials and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee's proposed installation. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee's direction or for Licensee's benefit. 7.5. Project Managers The City and Licensee each designate the person listed in this Section 7.5 as its project manager to coordinate Licensee's Equipment design and installation, and serve as each party's respective primary contact person for all design, engineering, construction and installation issues that may arise between the parties in connection with this Master License. If no person is designated by either party prior to the Effective Date, then each party shall designate a person through a written notice promptly following the written request of either party to do so. 25 Jan. 14, 2020 Item #3 Page 30 of 73 City's Project Manager: Curtis M. Jackson Real Estate Manager 3096 Harding Street Carlsbad, CA, 92008 Phone: (760) 434-2836 Email: Curtis.jackson@carlsbadca.gov Licensee's Project Manager: David McFeeters, PMP Program Manager 3030 Warrenville Rd. Lisle, IL 60532 Phone-Cell: 702-381-4027 Phone-Main: 866-892-5327 Email: dmcfeeters@extenetsystems.com Licensee acknowledges that the City's project manager is not exclusively assigned to this Master License or any Site License, and that the City's project manager may not always be immediately available to Licensee or its project manager. Licensee further acknowledges that the authority delegated by the City to the City's project manager is limited to the administration of this Master License, any Site License Applications and any approved Site Licenses. The parties' respective project managers will have no obligation to personally perform any term or covenant to be performed by the other party under this Master License. Notices to the parties' respective project managers alone will not be deemed effective notice for any purpose under this Master License. 7.6. Coordination with the City Licensee must coordinate all its installation, construction and other work on or about the License Area with the City so as to avoid any interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, City Property and the City's municipal operations. 7.7. Title to Licensee's Equipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents will be and remain at all times Licensee's personal property. All structural improvements to any Vertical Infrastructure, any replacement Vertical Infrastructure as approved by the City and shown in the Approved Plans except for any fiber installed by or on behalf of Licensee, will become City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to Licensee that it does not wish to take title to such structural 26 Jan. 14, 2020 Item #3 Page 31 of 73 improvements. Subject to Section 26 (Surrender of License Area), Licensee may remove its Equipment from the License Area at any time after 30 days' written notice to the City. 7.8. Prevailing Wages 7.8.1. Compliance with Prevailing Wage Policies The services to be provided under the Master License or Site License are subject to prevailing wage rate payment as set forth in California Labor Code §1771. Accordingly, to the extent that any such services are subject to the prevailing wage rate payment requirements, Licensee and its Agents shall comply with all applicable California Labor Code requirements, including the payment of prevailing wages in connection with the services to be provided to the City hereunder (collectively, "Prevailing Wage Policies"). Licensee shall submit, upon request by the City, certified copies of payroll records to the City and shall maintain and make such records available to the City or the City's duly authorized representative for inspection and copying in a manner consistent with Licensee's obligations under Section 24 (Records). Licensee shall defend, indemnify and hold the City and its Indemnified City Parties harmless from and against any and all present and future Claims, that arise from or in connection with Licensee's obligation to comply with all Laws with respect to the installation, construction and other work, and Prevailing Wage Policies, which includes without limitation any and all Claims that may be made by Agents or other third parties pursuant to California Labor Code§§ 1726 and 1781, as amended and added by California Senate Bill 966 (Alarcon), and as may be amended or superseded in the future. Licensee hereby waives, releases and discharges forever the City and Indemnified City Parties from any and all present and future Claims that arise from or in connection with Licensee's obligation to comply with all Laws with respect to the installation, construction and other work and Prevailing Wage Policies. Licensee hereby acknowledges that Licensee is aware of and familiar with the provisions in California Civil Code §1542 which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him must have materially affected his or her settlement with the debtor. Licensee hereby waives and relinquishes all rights and benefits which it may have under California Civil Code § 1542, as such relates to the Master License and any Site License. Licensee's obligations under this Section 7.9 will survive the expiration or earlier termination of this Master License and any Site License. 27 Jan. 14, 2020 Item #3 Page 32 of 73 7.8.2. Senate Bill 854 Notice Requirements As provided in SB 854 (Stats. 2014, Ch. 28}: (a} no contractor or subcontractor may be qualified to bid on, be listed in a bid proposal subject to the requirements of Section 4104 of the California Public Contracts Code, or engage in the performance of any contract for public work, unless currently registered with the Department of Industrial Relations ("DIR"} and qualified to perform public work pursuant to California Labor Code Section 1725.5 (Cal. Lab. Code§ 1771.l{a}}; (b} no contractor or subcontractor may be awarded a public works contract unless registered with the DIR to perform public work pursuant to California Labor Code Section 1725.5 (Cal. Lab. Code§ 1771.l{b}}; and (c} work performed on the project is subject to compliance monitoring and enforcement by DIR (Cal. Lab. Code§ 1771.4}. 7.8.3. Job Site Notices Licensee shall post at the job site notices in compliance with Title I of the California Code of Regulations Section 16451. 8. LICENSEE'S MAINTENANCE OBLIGATIONS 8.1. Equipment Maintenance Licensee shall, at its sole cost and expense, maintain all Equipment installed on the License Area in good condition, reasonable wear, tear and casualty damage excepted, at all times, and shall promptly repair any damage to any Equipment installed on the License Area whenever repair or maintenance may be required, subject to the City's prior approval if required under Section 7 (Equipment Installation}. With the exception of administrative encroachment permits for access to a Site, Licensee will not be required to seek the City's prior approval for any Equipment repair, maintenance, replacement or other installation on the License Area when such Equipment appears on the Approved Plans. Licensee must obtain the City's prior written approval for any Equipment repair, maintenance, replacement or other installation that involves larger, different or additional Equipment than as appears on the Approved Plans subject to the paramount provisions in Section 6.5 above. Licensee expressly acknowledges that Section 6409(a} of the Middle-Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455), as may be amended or superseded, does not apply to this Master License or any Site License. Licensee expressly acknowledges and agrees that Licensee shall not perform any repair, maintenance, replacement or other work authorized under this subsection until and unless Licensee obtains all Regulatory Approvals required for such work. 28 Jan. 14, 2020 Item #3 Page 33 of 73 8.2. Damage to Vertical Infrastructure 8.2.1. Notice to City If Licensee discovers any damage to the License Area from any cause, Licensee shall promptly give notice to the City that describes damage and the location(s) where the damage occurred. Licensee will not be deemed to have assumed liability for any life-threatening or hazardous conditions by giving such notice, unless such conditions were caused by or arose in connection with Licensee's or its Agent's or lnvitee's acts, omissions or negligence. 8.2.2. Damage Caused by Licensee In the event that Licensee or its Agents or Invitees cause any damage to any Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), Licensee must repair such damage within 30 days after Licensee receives notice from City that describes such damage or, if the damage cannot reasonably be repaired in such time, then Licensee will have additional time as is, in City's estimation, reasonably required to repair such damage, as long as Licensee has commenced repair and diligently pursues it to completion. In the event that Licensee fails to timely cure the damage, the City may repair the damage at Licensee's expense. Licensee will reimburse the City for all costs incurred to repair such damage within 30 days after Licensee receives the City's demand for payment, together with copies of invoices or other evidence to document the costs incurred. The City's right to repair any damage and receive reimbursement from Licensee pursuant to this Section 8.2.2 shall be in addition to (and not exclusive of) any legal and equitable remedies the City may have under applicable Laws. 8.2.3. No Right to Repair Vertical Infrastructure Absent notice from the City with a demand to cure any damage to any Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), or an authorization to proceed with such work, Licensee is not authorized to make any repairs to any Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) or License Area. Licensee expressly waives all rights it may have under any applicable Laws to make repairs at the City's expense. However, Licensee shall have the right to conduct testing and maintenance activities, and repair and replace damaged or malfunctioning Equipment at any time during the Term. 8.3. Graffiti Abatement In addition to Licensee's other maintenance obligations under this Master License and any Site License, Licensee shall remove any graffiti or other similar markings from the License Area promptly upon actual notice (but in no event later than five (5) days after Licensee's receipt of written notice from the City of the presence of graffiti at a particular License Area identified in the City's written notice). If the graffiti is not abated by Licensee within five (5) days after Licensee's receipt of the City's written notice to Licensee, then the City may, at the City Manager's 29 Jan. 14, 2020 Item #3 Page 34 of 73 sole discretion, abate the graffiti at Licensee's expense, under the prov1s1ons of Carlsbad Municipal Code Chapter 6.16 Nuisances. The City shall keep an itemized account of all the costs and expenses incurred by the City in abating nuisances under the provisions of this section. If the costs are not paid within thirty (30) days of Licensee's receipt of the City's invoice accompanied by reasonable substantiation, then thereafter, City shall have the right to suspend the issuance of any further permits or Site Licenses under this Agreement until the abatement costs are paid in full, or otherwise declare Licensee in default pursuant to of the applicable Site License which is identified by the City to contain graffiti pursuant to Section 18.1 of this Master License. 8.4. Maintenance Work Performance Standards All work performed by or for Licensee under this Section 8 shall be performed: (1) at Licensee's sole cost and expense; (2) by only appropriately licensed contractors; (3) in a manner and with equipment and materials that will not unreasonably interfere with or impair the City's municipal operations on or about the License Area during any approved installations; and (c) in a manner compliant with all applicable Laws. 9. UTILITIES Licensee shall be responsible to secure its own electricity services for its Permitted Use and shall not be permitted to "submeter" from any electrical service provided to the City on any License Area without the City's prior written consent, which the City may withhold in its sole and absolute discretion. Licensee shall timely pay when due all charges for all electricity service furnished to its Equipment on the License Area. Licensee may install or cause to be installed a separate electric meter on the Vertical Infrastructure, or on a ground mounted pedestal or on Licensee's pad mounted equipment cabinet as required by the electric provider for the operation of its Equipment. While the City is not obligated to make its Utility Infrastructure available to Licensee, nonetheless, the City shall make a good faith effort to make its Utility Infrastructure available in connection with each Vertical Infrastructure location identified by Licensee in its Site License Application, and Licensee and the City shall work cooperatively to allow Licensee to use the City's Utility Infrastructure wherever possible. In the event that Licensee submits a Site License Application to the City for a particular Vertical Infrastructure, but the City is unwilling to allow Licensee to use the City's Utility Infrastructure at such location for Licensee's utilization in connection with the Vertical Infrastructure, then the City and Licensee will work cooperatively to identify an alternate Vertical Infrastructure location where the City would be willing to allow Licensee to utilize, and which provides comparable wireless service coverage and performance acceptable to Licensee. In connection with Licensee's use of City's Utility Infrastructure on any Vertical Structure, Licensee shall be responsible for, and shall timely pay for the cost of the electrical service furnished to its Equipment on the License Area directly to PG&E or any successor utility which provides electrical service to the City's Vertical Infrastructure. 30 Jan. 14, 2020 Item #3 Page 35 of 73 10. TAXES, ASSESSMENTS AND OTHER IMPOSITIONS Licensee agrees to pay when due (and prior to delinquency) any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee's use within the License Area or Licensee's Equipment that may be imposed on Licensee under applicable Laws. Licensee shall not allow or suffer any lien for any taxes assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee's Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee's Equipment, the City shall promptly (but in no event later than 30 calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount directly attributable to Licensee's Equipment. Licensee understands and acknowledges that this Master License and any Site License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment under this Master License and any options, extensions or renewals in connection with this Master License or any Site License may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory interest created under this Master License. 11. LICENSEE'S OBLIGATIONS TO MAINTAIN COMPLIANCE WITH LAWS 11.1. Compliance with CPUC General Orders In addition to all other Laws, Licensee shall conduct all activities on the License Area in accordance with all applicable CPUC general orders, which includes without limitation CPUC General Order 95 and CPUC General Order 128 as those orders may be amended or superseded in the future, and the rules, regulations and other requirements adopted or enacted by the CPUC under such general orders. 11.2. Compliance with Building and Electric Codes In addition to Licensee's compliance with all other Laws and to the extent not in contravention of any applicable Law, Licensee shall conduct all activities on the License Area in accordance with the applicable requirements in the California Building Code, the California Electric Code, and any applicable local building and electrical code, as those codes exist now or may be amended in the future. To the extent that CPUC General Order 95 does not address small cell wireless installations on Vertical Infrastructure or Utility Infrastructure, Licensee shall comply with City requirements. 31 Jan. 14, 2020 Item #3 Page 36 of 73 11.3. Compliance with RF Exposure Regulations In addition to Licensee's compliance with all other Laws, Licensee shall maintain compliance with all Laws related to human exposure to RF emissions by the FCC which are based on the recommendations of various federal health and safety agencies including OSHA. 12. PUBLIC WORKS' OPERATIONS 12.1. City's Access to License Area Except as specifically provided otherwise in this Master License, the City and its Agents have the absolute right to access any License Area in whole or in part at any time without notice for any purpose; however, the City and its Agents shall not touch or interfere in any way with any Equipment. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City's or its Agents' access to the License Area, which includes, without limitation, any Equipment removed in an emergency or other exigent circumstances pursuant to Section 12.4 (Emergencies), except to the extent that the damage is caused by the City's or its Agent's negligence or willful misconduct. 12.2. City's Maintenance, Repairs or Alterations to Vertical Infrastructure The City will: (1) maintain and repair Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) as needed, in the City's sole judgment, for its street light operations and other municipal functions; and (2) correct any immediately hazardous condition. Except as provided in Section 19 (Termination), neither any City work on any Vertical Infrastructure nor any condition on any Vertical Infrastructure will: (a) entitle Licensee to any damages, unless such damages are caused by the City's active negligence or willful misconduct; (b) excuse or reduce any obligation by Licensee to pay any License Fees or Additional Fees or perform any covenant under this Master License or any Site License; or (c) constitute or be construed as a constructive termination of this Master License or any Site License. 12.3. City's Maintenance, Repairs or Alterations to Other City Property The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any municipal function, which includes without limitation maintenance and improvements in connection with street light services and compliance with all applicable Laws; provided, however, that the City: (1) makes a good-faith effort to provide prior notice to Licensee's On-Call Representative; (2) allows Licensee's On-Call Representative to observe the City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations on the License Area, taking into account any exigencies that may threaten persons or property. The provisions in this Section 12.3 will not be construed to allow Licensee's ordinary operations to impede or delay the City's authority and ability to make changes to the License Areas necessary 32 Jan. 14, 2020 Item #3 Page 37 of 73 to maintain street light services, traffic control services, any municipal utility services (to the extent permissible under applicable Laws) or any other municipal functions carried out for the public's health, safety, welfare or benefit. 12.4. Emergencies In emergencies, and unless expressly provided in applicable Laws, the City's work and operations will take precedence over Licensee's operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole and absolute determination and in accordance with this Section 12.4, with or without notice to Licensee. When safe and practicable, as determined by the City, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any Vertical Infrastructure or the Utility Infrastructure serving the Vertical Infrastructure, as the case may be, or other City Property and will allow Licensee to remove its Equipment before the City removes or replaces such Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) or other City Property; provided, however, that the City will remove the Equipment from the License Area when in the City's sole determination it would: (1) be unsafe or not practicable to wait for Licensee to perform (or cause to be performed) the work; (2) result in significant delay; or {3) otherwise threaten or compromise public health, safety, welfare or public services. The City will remove any Equipment with reasonable care and store such Equipment for retrieval by Licensee. Licensee shall have the right to reinstall such removed Equipment (or equivalent replacement Equipment) at Licensee's sole expense on the repaired or replaced Vertical Infrastructure including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be, and/or License Area and in accordance with Section 7 (Equipment Installation). Licensee expressly acknowledges that any act(s) taken by the City pursuant to this Section 12.4, which includes without limitation any Equipment removal or storage, will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee's contractual privilege to use the License Area. 13. INDEMNIFICATION 13.1. Licensee's Indemnification Obligations Licensee, for itself and its successors and assigns shall indemnify, defend and hold the City and its Agents, elected and appointed officials and volunteers (collectively, the "Indemnified City Parties") harmless from and against any and all Claims incurred in connection with or arising in whole or in part from the installation, use, maintenance, repair or removal of the Equipment or Licensee's breach of any provision of this Agreement. Licensee's indemnity obligation provided for in this Section shall not apply to any Claim resulting from the negligence or willful misconduct of the City or other Indemnified City Parties. Licensee's obligations under this Section 13 includes, without limitation, all reasonable fees, costs and expenses for attorneys, consultants and experts, and the City's actual costs to investigate any Claim. Licensee expressly acknowledges and agrees that (a) it has an immediate and independent obligation to defend any Indemnified City Parties 33 Jan. 14, 2020 Item #3 Page 38 of 73 from any Claim that falls within this Section 13, even when the allegations in the Claim are or appear to be groundless, fraudulent or false; and (b) Licensee's obligations under this Section 13 arise at the time any Indemnified City Parties tender such Claim to Licensee and continue until such Claim's final resolution. Licensee's obligations under this Section 13 shall survive this Master License's and any applicable Site License's expiration or termination. 13.2. Licensee's Defense of City In the event that any Claim is brought against any Indemnified City Parties in connection with any subject matter for which any Indemnified City Parties are indemnified by Licensee under this Master License or any Site License, City shall give Licensee prompt written notice and Licensee shall, at Licensee's sole cost and expense, resist and defend against such Claim with legal counsel that Licensee shall have the right to select provided that the legal counsel must have (1) not less than 10 years' direct experience in similar actions or proceedings as that brought against the Indemnified City Parties; (2) no past disciplinary actions by any United States tribunal or state bar association; and (3) no actual or potential conflicts of interest with any Indemnified City Parties. Otherwise any other legal counsel which Licensee desires to select shall be subject to the City's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Licensee shall not, without the City's written consent, enter into any compromise or settlement agreement on any Indemnified City Parties' behalf that (a) admits any liability, culpability or fault whatsoever on any Indemnified City Party's part; or (b) requires any Indemnified City Party to take any action, which includes without limitation any change in the City's policies, or pay any money. Nothing in this Master License shall be construed to limit or preclude any Indemnified City Parties or their respective legal counsel from cooperating with Licensee and participating in any judicial, administrative or other litigation or proceeding. 14. INSURANCE Prior to any activities by Licensee on the License Area or other City Property, Licensee shall comply with all insurance requirements and other obligations contained in Exhibit B. The City shall have the right to amend or replace the insurance requirements and other obligations contained in Exhibit Bone time during any consecutive sixty (60) month period during the Term of this Master License on 60 days' prior written notice to Licensee. 15. LIMITATIONS ON LIABILITY 15.1. General Limitation on City's Liability Licensee expressly acknowledges that the City is not responsible or liable to Licensee for any and all Claims that arise in connection with (1) acts or omissions by persons or entities using the sidewalk, street or other areas adjoining, adjacent to or connected with any License Area; (2) any utility service interruption; (3) theft; (4) burst, stopped or leaking water, gas, sewer, steam or other pressurized pipes; (5) fires, floods, earthquakes or other force majeure; or (6) any vehicular collision on or about the License Area or other City Property; all except to the extent such events 34 Jan. 14, 2020 Item #3 Page 39 of 73 are caused directly and exclusively by the City's gross negligence or willful misconduct. Licensee expressly waives and releases all Claims it may have against the City or its Agents that arise in connection with the events described in this Section 15.1 as may be related to this Master License, any Site License or any acts or omissions on or about the License Area. 15.2. Consequential, Indirect or Punitive Damages Neither party will be liable under this Master License for consequential, indirect, or punitive damages (including lost revenues, loss of equipment, interruption, loss of service, or loss of data) for any cause of action, whether in contract, tort, or otherwise, even if the party was or should have been aware of the possibility of these damages, whether under theory of contract, tort (including negligence), strict liability, or otherwise. Licensee expressly acknowledges and agrees that the License Fees and Additional Fees payable under this Master License do not take into account any potential liability on the City's part or any Indemnified City Parties' part for consequential or incidental damages. The City would not be willing to enter into this Master License or issue any Site Licenses unless Licensee completely waived any Claims against the City or any Indemnified City Parties, to the fullest extent permitted by applicable Laws, for consequential or incidental damages due to the acts or omissions by the City or its Agents, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any indemnification obligation placed on Licensee or other waivers contained in this Master License, and as material consideration for this Master License and all Site Licenses (if any), Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages that may arise from or in connection with this Master License or any Site License, which includes without limitation any lost profits related to any disruption to Equipment, any interference with uses or operations conducted by Licensee under this Master License and/or any Site Licenses, from any cause whatsoever, and whether or not due to the active or passive negligence or willful misconduct by the City or any Indemnified City Parties, and covenants not to sue for such damages the City, the City's departments and all City agencies, officers, directors and employees, and all persons acting by, through or under them. In no event will Licensee be liable to the City for any special, consequential or indirect damages. 15.3. No Relocation Assistance Neither this Master License nor any Site License creates any right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (California Government Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as either may be amended or superseded, or any similar Laws upon or after any termination. To the extent that any such Laws may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have against the City for any compensation from the City except as provided in Section 23 (Condemnation). 35 Jan. 14, 2020 Item #3 Page 40 of 73 15.4. Mutual Personal Liability Waiver In no event will any City board, agency, member, officer, employee or other Agent be personally liable to Licensee, it successors or assigns, for any default, breach, other nonperformance or sum unpaid sum by the City. In no event will any Licensee board, agency, member, officer, employee or other Agent be personally liable to the City for any for any default, breach, other nonperformance or sum unpaid sum by Licensee. 16. HAZARDOUS MATERIALS 16.1. Hazardous Materials in the License Area Licensee covenants and agrees that neither Licensee nor its Agents or Invitees will cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of or Released in, on, under or about the License Area or any other City Property, in whole or part, or transported to or from any City Property in violation of any Environmental Laws, except that Licensee may use small quantities of Hazardous Materials as needed for routine operation, cleaning and maintenance of Licensee's Equipment that are customarily used for routine operation, cleaning and maintenance of such equipment and so long as all such Hazardous Materials are contained, handled and used in compliance with all Environmental Laws. 16.2. Hazardous Material Release Notice Licensee shall promptly notify the City if and when Licensee learns or has reason to believe any Hazardous Material Release has occurred in, on, under or about the License Area or other City Property caused by Licensee, its Agents or its Invitees, however, no default may be declared by the City pursuant to this Section 16.2 unless Licensee has actively concealed the Hazardous Material Release after Licensee learns or has reason to believe that the Hazardous Material Release has occurred. Licensee will not be deemed to have assumed liability for any such Release by giving such notice, unless such Release was caused by or arose in connection with Licensee's or its Agent's or lnvitee's acts, omissions or negligence. 16.3. Licensee's Hazardous Material Indemnification Obligations If Licensee breaches any obligations contained in this Section 16 (Hazardous Material), or if any act, omission or negligence by Licensee or its Agents or Invitees results in any contamination on or about the License Area or other City Property, or in a Hazardous Material Release from, on, about, in or beneath the License Areas or any other City Property, in whole or in part, or any Environmental Law violation, then Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the City and any Indemnified City Parties harmless, from and against any and all Claims (including damages for decrease in value of the License Area or other City Property, the loss or restriction of the use of usable space in the License Area or other City Property and sums paid in settlement of Claims, attorneys' fees, consultants' fees, and experts' fees and related costs) that arises during or after the Term related to or in connection with such 36 Jan. 14, 2020 Item #3 Page 41 of 73 Release or violation; provided, however, Licensee shall not be liable for any Claims to the extent such Release or violation was caused directly and exclusively by the City's negligence or willful misconduct. Licensee's indemnification obligation includes all costs incurred in connection with any activities required to Investigate and Remediate any Hazardous Material brought or Released onto the License Area or other City Property by Licensee or its Agents or Invitees and to restore the License Area or other City Property to its condition prior to such introduction or Release, or to correct any Environmental Law violation. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City and the other Indemnified City Parties from any Claim that actually or potentially falls within this indemnity provision even if the allegations supporting the Claim are or may be groundless, fraudulent or false, and that said obligation arises at the time such Claim is tendered to Licensee by the Indemnified City Party and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes any Hazardous Material Release on, about, in or beneath the License Area or other City Property, then in any such event Licensee shall, promptly, at no expense to any Indemnified City Party, take any and all necessary actions to return the License Area and/or other City Property, as applicable, to substantially the same condition existing prior to such Hazardous Materials Release on the License Area or other City Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was caused directly by the City's negligence or willful misconduct. Licensee shall afford the City a full opportunity to participate in any discussions with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding that involves Hazardous Material Release on or about the License Area. Notwithstanding the foregoing or any other provision in this Agreement, Licensee shall not be liable or responsible for environmental or industrial hygiene conditions that existed before the execution of this Agreement, or that otherwise did not result from the activities of Licensee. 17. INTERFERENCE 17.1. Licensee's Obligations Not to Cause Interference Licensee will not install, maintain or operate any Equipment in a manner that interferes with or impairs other communication (radio, telephone, data and/or other transmission or reception) or computer equipment lawfully used by any persons or entities, which includes the City and its Agents and Invitees, consistent with applicable FCC rules in place at such time. Such interference will entitle the City to declare a default under this Master License and any applicable Site License by Licensee. Upon notice from the City by calling Licensee's Network Operations Center at (800) 264-6620 Licensee shall promptly work to eliminate such interference at no cost to the City. Licensee will be required to use its best efforts to remedy and cure such interference without any impairment to any City operations. If Licensee does not promptly cure such default, the parties acknowledge that continued interference may cause irreparable injury to the City and, therefore, the City will have the right to bring an action against Licensee to, at the City's election, immediately enjoin such interference. If the City does enjoin such interference, the City shall provide Licensee a reasonably equivalent alternate location and/or Licensee may terminate the affected Site License upon thirty (30) days' notice to the City. 37 Jan. 14, 2020 Item #3 Page 42 of 73 17.2. Interference Caused by City City reserves the right, but not the obligation, to maintain and operate its facilities in such reasonable manner as will best enable City to fulfill its own service requirements or obligations. However, City agrees that City and/or any other tenants, licensees, or users of the Rights-of-Way who currently have or in the future take possession of space within the Rights-of-Way will be permitted to install only such equipment that is of the type and frequency that will not cause interference to the then existing Equipment of Licensee, consistent with the applicable FCC rules in place at such time, and will not interfere with Licensee's use. If any change in any use on or about the License Area by the City during the Term results in measurable, material and adverse impairment to Licensee's normal and lawful operations, which makes it necessary for Licensee to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide evidence to substantiate the claimed impairment. After the City receives such notice, the City will have the right to make its own reasonable determination and, if it agrees with Licensee, the City will investigate whether it can reasonably and economically mitigate that interference. The City will provide notice to Licensee of the City's determination. If the City determines, in its sole and absolute discretion, that mitigation is reasonably and economically feasible, the City's notice will specify when the City will mitigate the adverse effect. The City's mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City determines, in its sole and absolute discretion, that mitigation is not reasonably or economically feasible, Licensee may elect either to: (1) terminate the affected Site License and receive a ratable refund in the License Fee for those Site Licenses terminated after the first License Year; or (2) take steps itself at its own cost to mitigate the adverse effect and continue to operate the Equipment on the License Area, and receive from the City a written waiver from the obligation to pay the License Fee for the first twelve {12) months in the next License Year under the affected Site License to offset the mitigation costs. Licensee agrees that the City's temporary and partial License Fee abatement or waiver under this Section 17.2 will be the only compensation due to Licensee for costs incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise from or be related to the adverse effects. Under no circumstances will the City be required to alter its operations at the identified License Area or provide a replacement License Area to Licensee The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Section and therefore the Parties shall have the right to equitable remedies such as, without limitation, injunctive relief and specific performance. 17.3. Interference Caused by City Access Licensee acknowledges and agrees that it will not be entitled to any License Fee abatement if the City exercises its rights to access, remove and/or store Equipment under Section 12 {Public Works' Operations) unless the City's acts or omissions cause Licensee to be unable to operate Equipment on the License Area for its permitted use for a period of more than 5 days, in which 38 Jan. 14, 2020 Item #3 Page 43 of 73 case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is unable to operate any Equipment on any affected License Area calculated from the first day of such City acts or omissions 18. DEFAULT 18.1. Defaults and Cure Periods The parties agree that any failure to perform or observe any term, condition, obligation or other provision in this Master License or any Site License, beyond the applicable cure period, shall be a default. For any monetary default, the defaulting party shall have 30 days after written notice from the non-defaulting party to perfect a cure. The defaulting party shall not be entitled to any additional time to cure a monetary default. For any non-monetary default, the defaulting party shall have 30 days after written notice from the non-defaulting party to perfect a cure; provided, however, that for any non-monetary default that cannot reasonably be cured within 30 days, the defaulting party shall have additional time as is reasonably necessary to perfect the cure if the defaulting party commences to cure the default within the first 30 days after notice and diligently pursues the cure to completion. 18.2. Licensee's Remedies Except as may be otherwise provided elsewhere in this Master License, Licensee's sole remedies for the City's uncured default will be (1) to terminate the Site License(s) affected by the uncured default on 30 days' prior written notice; and (2) an action for damages subject to the provisions in Section 15 (Limitations on Liability). 18.3 Licensee's Uncured Default and City's Remedies. If Licensee does not cure its default within the applicable cure period in Section 18.1, then thereafter City may elect any of the following remedies: (a) suspend Licensee's access to the Vertical Infrastructure or Utility Infrastructure to which the default pertains; (b) terminate the specific Site License Agreement(s) or affected portion thereof covering the Vertical lnfrastructure(s) or Utility Infrastructure to which the default pertains; (c) require Licensee's obligation to which the default has been declared to be specifically performed; and/or (d) continue in effect any applicable Site Licenses to which the default pertains, with the right of the City to enforce all its rights and remedies, which includes without limitation the right to receive all License Fees, Additional Fees, Default Fees and other sums as 39 Jan. 14, 2020 Item #3 Page 44 of 73 they may become due and to maintain an action at law against Licensee for damages directly incurred by the City arising directly from Licensee's uncured default. 18.4 City's Uncured Default and Licensee's Remedies. If the City does not cure its default, then thereafter, Licensee may elect to pursue any rights or remedies available to Licensee at law or in equity. 18.5 Default Fees In addition to all other rights and remedies available to the City, the City may require Licensee to pay an additional fee to offset the City's administrative cost to enforce compliance with the non- monetary terms of this Master License or any Site License as more particularly described on Schedule 1 (each a "Default Fee"). Licensee shall pay the Default Fee within 15 days after Licensee's receipt of a written demand from the City. If Licensee fails to timely pay the Default Fee or cure the underlying default within the applicable cure period, the City shall have the right (but not the obligation) to send Licensee a follow-up notice and demand for an additional Default Fee that will be due and payable within 30 days. Licensee's obligation to pay Default Fees is separate and distinct from the underlying default. Default Fee payments shall not be deemed to cure the underlying default. 18.6. Cumulative Remedies Except as otherwise provided in this Master License, all rights and remedies available to the City or Licensee are cumulative, and not a substitute for, any rights or remedies otherwise available to the City or Licensee. 19. TERMINATION 19.1. Master License Termination by Licensee Licensee may, in Licensee's sole discretion, terminate this Master License on one (1) year's prior written notice to the City. 19.2. Site License Termination by Licensee A Site License may be terminated by Licensee for any reason or no reason, and without further liability to Licensee, at any time effective upon 90 days prior written notice to the City. 19.3. City's Termination Rights Due To Material Interference With City Municipal Functions/Threat To Public Health/Safety/Welfare The City has the right to terminate any or all Site Licenses on 90 days' prior written notice to Licensee if the City determines, in the City's sole reasonable judgment, that Licensee's operations 40 Jan. 14, 2020 Item #3 Page 45 of 73 on or about the License Area adversely affect or threaten public health and safety, materially interfere with the City's municipal functions or require the City to maintain Vertical Infrastructure or Utilities Infrastructure for an applicable Site License that the City no longer needs for its own purposes. In the event that the City terminates any Site License for reasons unrelated to Licensee's failure to perform its obligations under this Master License, the City shall refund any pre-paid Licensee Fee on a pro-rata basis. In addition, the City shall prioritize Licensee's Site License Application for any Site License to replace the terminated Site License; provided, however, that (1) the City shall prioritize only as many Site License Applications as Site Licenses terminated by the City and (2) the City's prioritization will not affect Licensee's obligations under this Master License. 20. ASSIGNMENT AND OTHER TRANSFERS 20.l. General Restriction on Assignment and Other Transfers Except as specifically provided in Section 20.3 (Permitted Assignments), Licensee shall not directly or indirectly assign or transfer its interests or rights, whether in whole or in part, in connection with this Master License, any Site License or the License Area without the City's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. 20.2. General Assignment and Other Transfer Procedures 20.2.1. Proposed Assignment Notice In the event that Licensee desires to assign or otherwise transfer any right, title or interest in this Master License or any Site License, whether in whole or in part, and such assignment or other transfer is not a Permitted Assignment, Licensee shall first send written notice to the City (the "Proposed Assignment Notice"), which states in detail the proposed terms and conditions for the proposed assignment or other transfer and complete information that the City reasonably requires to fully evaluate Licensee's request and render an informed decision, which includes without limitation, non-confidential financial statements, business track records, references and other information about the proposed assignee or transferee (the "Proposed Assignee"). In the event that Licensee does not provide all the such information simultaneously with the Proposed Assignment Notice, the Proposed Assignment Notice shall not be deemed effective until Licensee delivers all such information as the City may reasonably require. 20.2.2. City's Response to Proposed Assignment Notice The City shall approve or disapprove any request for consent to an assignment or other transfer within 30 days after the City receives a complete Proposed Assignment Notice (the "Assignment Response Period"). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to Licensee written consent to the proposed assignment or other transfer, then Licensee shall have 100 days from such written consent to complete the assignment or other transfer. The City's consent will be deemed 41 Jan. 14, 2020 Item #3 Page 46 of 73 to be automatically revoked if Licensee fails to complete the proposed assignment or other transfer within said 100-day period; provided, however, that the 100-day period may be extended to a date certain in a written agreement, which the City shall not unreasonably refuse if the extension is necessitated by circumstances outside Licensee's control. 20.3. Permitted Assignments 20.3.1. General Authorization The City agrees that Licensee will be permitted to assign or otherwise transfer this Master License and any Site License(s) issued under it without the City's prior consent but with notice to the City as provided below, to: (1) an Affiliate; (2) an entity that acquires all or substantially all Licensee's assets in the market in which the License Area is located (as the "market area" is or may be defined by the FCC); (3) an entity that acquires a Controlling interest of Licensee by a change in stock ownership or partnership interest; (4) an entity Controlled by Licensee; or (5) an entity that is a successor to Licensee either by merger or other consolidation of Licensee (each such assignment or transfer, a "Permitted Assignment"). 20.3.2. Conditions on Permitted Assignments All Permitted Assignments will be subject to all the following conditions: (1) the Proposed Assignee may use the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to lawfully install, operate and maintain Equipment on the License Area; (2) Licensee or its assignee provides the City notice of the Permitted Assignment no later than thirty (30) days follow the date of the assignment and assumption of the Master License or the applicable Site Licenses, as the case may be; and (3) Licensee is not in default of its obligations under this Master License beyond any applicable notice and cure period. 20.4. Effect of Assignment or Other Transfer No assignment or other transfer by Licensee, consent to assignment by the City, or Permitted Assignment under Section 20.3 (Permitted Assignments) will relieve Licensee from any obligation on its part under this Master License or any Site License unless the Proposed Assignee agrees in writing to assume all of Licensee's obligations under the Master License and Site Licenses. Any assignment or other transfer that is not in compliance with this Master License will be void and be a material default by Licensee without a requirement for notice and a right to cure. The City's acceptance of any License Fee, Additional Fee, or other payments from a Proposed Assignee will not be deemed to be the City's consent to such assignment or other transfer, recognition of any assignee or transferee or waiver of any failure of Licensee or other transferor to comply with this Section 20 (Assignments and Other Transfers). 42 Jan. 14, 2020 Item #3 Page 47 of 73 20.5. Assumption by Assignee or Transferee Each Proposed Assignee shall assume all Licensee's obligations under this Master License and each assigned Site License. Except for a Permitted Assignment, no assignment or other transfer will be binding on the City unless Licensee or the Proposed Assignee delivers to the City evidence satisfactory to the City that the Proposed Assignee has obtained all Regulatory Approvals required to operate as a wireless communications service provider on the assigned License Area, a copy of the assignment or other transfer agreement and an instrument in recordable form that contains a covenant of assumption by such Proposed Assignee satisfactory in substance and form to the City, consistent with the requirements in this Section 20 (Assignment and Other Transfers). However, the failure or refusal by a Proposed Assignee to execute such instrument will not release such Proposed Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section 20.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed assignment, which includes the costs to investigate the acceptability of the Proposed Assignee and legal costs incurred in connection with considering any requested consent. The City agrees that its right to reimbursement under this Section will be limited to Two Thousand Dollars and 00/100 Dollars ($2,000.00) for each request. 21. LICENSEE'S CUSTOMERS AND COLLOCATORS Licensee may provide capacity to Licensee's customers using, or permit such customers to use, the Equipment installed by Licensee without the City's consent required in this Section; provided, however, that: (1) Licensee remains solely responsible for such Equipment and (2) such use by Licensee or Licensee's customers does not involve any physical changes to the Equipment other than changes permitted under Section 6.5 (Future Modifications to Equipment Shown on the Approved Plans). In any other case, Licensee may provide capacity to Licensee's customers using, or permit such customers to use, the Equipment installed by Licensee upon prior written notice to the City that: (a) identifies the customer who will be using the Equipment and the location(s) where such use will occur; and (b) includes the appropriate annual fee for the additional carrier as specified in Section 4, prorated to account for any partial year. Thereafter, Licensee shall pay the additional carrier fee each year in the same manner as the License Fee so long as the additional carrier continues to use the Equipment. Notwithstanding anything in this Master License to the contrary, Licensee shall not be required to pay any additional fee to allow Licensee's customers to use wireline Equipment for data transport, backhaul or similar services. 22. DAMAGE OR DESTRUCTION OF LICENSE AREA 22.1. City's Rights after Damage or Destruction 22.1.1. City's Election to Repair or Replace Vertical Infrastructure Within 30 days after the date on which the City discovers damage or destruction on or about any Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as 43 Jan. 14, 2020 Item #3 Page 48 of 73 the case may be), the City will give Licensee notice of the City's decision as to whether to repair or replace the damaged Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) and its good faith estimate as to the time the City will need to complete the work. To clarify, Licensee is not responsible for any damage or destruction not caused by Licensee or outside of Licensee's control. If the City's time estimate exceeds 30 days, or if the City cannot complete the work within 30 days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate the affected Site License(s) immediately upon written notice to the City. 22.1.2. City's Election to Remove Vertical Infrastructure If the City elects to remove, rather than repair or replace, any damaged Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) licensed to Licensee, then the applicable Site License will automatically terminate on the last day of the month in which the removal occurs. 22.1.3. City's Election to Remove Equipment If the acts by third parties or other force majeure circumstance outside the Licensee's or its Agent's or lnvitee's control destroys or damages any Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), License Area or other City Property to such an extent that, in the City's reasonable determination, the Equipment on the Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), License Area or other City Property cannot be operated, the City or Licensee may decide to terminate the affected Site License on 30 days' notice to the other party. Upon such termination, Licensee shall remove the Equipment from the damaged Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) within 90 days of such notice. 22.2. Licensee's Rights after Termination After any termination of a Site License pursuant to Section 22.1 (City's Rights After Damage or Destruction), the City will: (1) refund any pre-paid License Fee in connection with the terminated Site License on a pro-rata basis determined by the number of months left in the current License Year at the time such termination occurs, unless the termination occurs in the first 12 months after the Commencement Date; and (2) prioritize Licensee's Site License Application for one replacement Site License for each such license terminated by the City. 22.3. Licensee's Statutory Waiver The parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any licensed Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) becomes damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases 44 Jan. 14, 2020 Item #3 Page 49 of 73 the provisions in California Civil Code §§1932(2) and 1933(4), as either may be amended or superseded, or any similar Laws. 23. CONDEMNATION 23.1. Permanent Takings In the event that any person or entity with the power to condemn permanently takes any License Area, in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the City must make a good-faith effort to provide 60 days prior written notice to Licensee of any proposed taking and the following provisions will apply: 23.1.1. Termination Rights after Condemnation Any affected Site License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs. At the same time, the License Fee under the affected Site License will be ratably reduced to account for the reduction in License Area. Notwithstanding the forgoing, Licensee shall have the right to terminate any Site License upon 30-days written notice to the City if Licensee determines in its sole discretion that any such condemnation (or other transfer in lieu of condemnation) will interfere with Licensee's operations. 23.1.2. Award The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term under either this Master License, any Site License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. 23.1.3. No Statutory Right to Terminate The parties understand, acknowledge and agree that this Section 23.1 (Permanent Takings) is intended to fully govern the parties' rights and obligations with respect to a permanent taking for which just compensation is due. Licensee and the City each hereby waives and releases any right to terminate this Master License in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130, as both may be amended or superseded, and under any similar Laws to the extent applicable to this Master License and any Site License(s). 23.2. Temporary Takings The City must provide at least 60 days prior written notice to Licensee of any City-initiated taking that affects any License Area, in whole or in part, for less than 90 days and such temporary taking 45 Jan. 14, 2020 Item #3 Page 50 of 73 will have no effect on the affected Site License, except that Licensee will be entitled to terminate any Site License or a pro-rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee's ability to use the License Area for more than 10 days or interferes with Licensee's operations. 24. RECORDS 24.1. City Audit Rights of Licensee's Accounting Records Licensee shall maintain in accordance with Licensee's standard record retention policies, the following records at one of Licensee's physical office within the State of California: (i) accounting records that contains the amount and payment date for all License Fees paid to the City pursuant to this Master License and any Site Licenses. To determine whether Licensee has fully and accurately paid all License Fees and other sums payable to the City under this Master License and any Site License, the City, or its designee, will have the right one time in any consecutive five (5) year period during the Term of the Master License and so long as litigation is not pending between the City and Licensee arising from or related to this Master Agreement, to inspect and audit Licensee's accounting records at one of Licensee's offices in the State of California during regular business hours on thirty (30} business days' advance written notice to Licensee. Such written notice from the City must identify with specificity the period for which the City wishes to conduct its audit. Licensee shall have the right to have employee and its Agents physically present at all times that the City, its employees or Agents are conducting any such audit and representatives of the City shall comply with Licensee's standard accounting policies and procedures pertaining the City's auditing of Licensee's accounting records which are considered by Licensee to be proprietary and confidential. In the event that any City audit concludes that Licensee failed to pay License Fees and other sums by more than ten percent (10%) of the aggregate amount of License Fees and other sums due under this Master License for the period identified by the City in is written notice to Licensee then, Licensee shall, within 15 business days after Licensee's receipt of a written invoice from the City, pay (i) all outstanding sums and (ii) reimburse the City for the City's reasonable, actual and documented costs and expenses to conduct the audit. Notwithstanding the foregoing, if the audit reveals that Licensee failed to pay License Fees and other sums by less than ten percent {10%) of the aggregate amount of License Fees and other sums due under this Master License for the period for which the City notified Licensee, then Licensee shall remit any underpayment within 15 days after Licensee's receipt of a written demand from the City, and the City shall reimburse Licensee within 15 business days of the City's receipt of Licensee's invoice for Licensee's reasonable, actual and documented costs and expenses to supervise and otherwise participate in the City's conduct of the audit. If the City's audit reveals that Licensee has overpaid its License Fees and other sums due to the City under the Master License, then the City shall reimburse Licensee for any such overpayment within 15 days of the City's receipt of Licensee's invoice together with Licensee's supervisory and participation costs identified in the preceding sentence. 46 Jan. 14, 2020 Item #3 Page 51 of 73 24.2. Equipment Inspections and Audits The City has the right (but not the obligation) to inspect the License Area and the Equipment to evaluate Licensee's compliance with this Master License, any Site License and all applicable Laws; however, the City shall not touch or interfere in any way with any Equipment, except as otherwise allowable herein. In the event that any such inspection or evaluation concludes that Licensee installed Equipment without proper authorization or that ten percent (10%) or more sites were not installed in substantial compliance with the Approved Plans or all applicable Laws, the City shall send written notice of such to Licensee along with documentation of substantial non- compliance ("Non-Compliance"). After receipt of the Non-Compliance, Licensee shall have 30 business days to review and request additional documentation that may be reasonably required to confirm the validity of the City's Non-Compliance claim. If the Non-Compliance is undisputed, Licensee shall reimburse the City for the reasonable, actual and documented costs and expenses to conduct the investigation or evaluation of Non-Compliance, which shall not exceed $5,000 and shall only be reimbursed once every 5 years. 24.3. Estoppels Licensee, at any time throughout the Term and on not less than 30 business days' following Licensee's receipt of written notice from the City, shall execute, acknowledge and deliver to the City or its designee, an estoppel certificate for the requested Site License with the following statements: (i) that Licensee has accepted the License Area (or, if Licensee has not done so, that Licensee has not accepted the License Area in whole or in part and specifying the applicable License Areas and reasons for non-acceptance); (ii) the Effective Date and Expiration Date of this Master License; (iii) that the Master License is in full force and effect and whether or not the Master License and the Site License has been modified and, if so, the manner in which they were modified; (iv) whether any defenses currently exist against any action to enforce Licensee's obligations under this Master License (and, if so, specifying the same); (v) whether Licensee believes that the City failed to perform any obligations under this Master License or the Site License (and, if so, specifying any obligations that Licensee believes that the City has failed to meet); (vi) the dates, if any, on which the License Fees and Additional Fees have been paid; and (vii) any other information that may be reasonably required by the City pertaining to the status of the requested Site Licenses. 25. RULES AND REGULATIONS At all times throughout the Term, Licensee shall fully and faithfully comply with any and all non- discriminatory and reasonable rules, regulations and instructions that the City may from time-to- time establish and/or amend with respect to the License Area as long as they are provided in advance to Licensee and not inconsistent with the terms of this Master License, any Site License or applicable Law. 47 Jan. 14, 2020 Item #3 Page 52 of 73 26. SURRENDER OF LICENSE AREA 26.l. Licensee's Removal and Restoration Obligations No later than sixty (60) days after this Master License or any Site License expires or terminates, as the case may be, Licensee shall (1) peaceably remove its Equipment from the License Areas affected by the expiration or termination; (2) restore any such License Areas and other City Property affected by the removal to the condition that existed immediately before Licensee installed its Equipment, reasonable wear and tear and loss by casualty or other causes beyond Licensee's control excepted; and (3) surrender such License Areas to the City free and clear from any debris, hazards, liens and encumbrances caused by Licensee. Subject to the approval of the City Manager, the City may grant an additional thirty (30) days for Licensee to fulfill its obligations as set forth in this Section 26.l. The obligations under this Section 26.1 will survive this Master License's or any Site License's expiration or termination. 26.2. Abandonment At its option, the City may deem any Equipment to be abandoned that remains on any Vertical Infrastructure, Utility Infrastructure, License Area or other City Property for more than 60 days after this Master License or any applicable Site License expires or terminates. In any case, the City may dispose of abandoned Equipment in any lawful manner, at Licensee's sole cost. Licensee agrees that California Civil Code sections 1980 et seq., as may be amended or superseded, and similar Laws addressing abandoned property by residential or commercial tenants do not apply to any abandoned Equipment. 26.3. Hold Over If Licensee fails to surrender the License Area under a particular Site License as required in this Master License, and the City consents to Licensee's holdover, the Term will be automatically extended for such Site License on a month-to-month basis for up to one (1) year on the same terms and conditions except that the License Fee shall automatically increase by one hundred twenty-five percent {125%) over the then-current License Fee. Any further month to month holdover after one (1) year will be subject to a License Fee increase of 150% over the License Fee in effect at the start of the holdover. Any holdover without the City's consent will be a default by Licensee and will entitle the City to exercise any or all rights and remedies. 27. Surety Bond 27.l. Surety Bond Amount Prior to any installation, construction or other work performed by Licensee pursuant to this Master License or any Site License, Licensee shall furnish the City with a surety bond in the amount equal to Two Thousand and 00/100 Dollars ($2,000.00) per site (the "Surety Bond") as security to provide recourse for the City (at its option) in the event that Licensee defaults on its 48 Jan. 14, 2020 Item #3 Page 53 of 73 obligations to remove its Equipment from any License Area for a terminated or expired Site License or to perform its restoration obligations as set forth in Section 26.1 under this Master License. Upon the attachment of Licensee's Equipment at each subsequent site, thereafter, City may request Licensee increase the amount of the bond by Two Thousand and 00/100 Dollars ($2,000.00) for each subsequent installation. Alternatively, Licensee, may, in its sole discretion, increase the amount of the performance bond by the number of likely additional installations multiplied by $2,000.00. Such bond shall be with a company and in a form reasonably satisfactory to the City Manager and City Attorney. 27.2. Bond Amount Replenishment In the event that the City applies or uses the Surety Bond, in whole or in part, to cure any default by Licensee under Section 26.1, then Licensee shall replenish the Surety Bond to $2,000 within thirty (30) business days following Licensee's receipt of written notice from the City that the City has applied or used the Surety Bond and the City requires the replenishment of the Surety Bond in accordance with this Section 27.2. The City's replenishment notice shall include a complete copy of Section 27.1 and Section 27.2 of this Master License to be considered an effective replenishment notice to Licensee. The City may, in the City's reasonable judgment, require Licensee to increase the Surety Bond amount from time-to-time if the City determines that Licensee has been habitually placed in default of Site Licenses by the City in connection with Licensee's performance of its removal and restoration obligations under Section 26.1 of this Master License and therefore the City warrants additional security to ensure Licensee's performance of its Section 26.1 obligations. 27.3. Bond Application Licensee agrees that the City may use the Surety Bond, in whole or in part, to remedy any failure by Licensee to perform any term, covenant or condition in Section 26.1 of this Master License. In the event that the City uses the Surety Bond in whole or in part, the City will not be deemed to have waived any rights under this Master License, or legal or equitable rights whatsoever. Licensee expressly waives any rights it may have under California Civil Code§ 1950.7, as may be amended or superseded, or any similar Laws and agrees that the City may retain from the Surety Bond any portion reasonably necessary to compensate the City for any foreseeable or unforeseeable loss or damage caused by Licensee's, its Agents' or lnvitee's acts or omissions. 28. Miscellaneous Provisions 28.1. Notices Except as may be specifically provided otherwise in this Master License, all notices, demands or other correspondence required to be given in connection with or pursuant to this Master License must be written and delivered through (i) an established national courier service that maintains delivery records and confirmations; (ii) hand delivery; or (iii) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows: 49 Jan. 14, 2020 Item #3 Page 54 of 73 TO CITY: With a required copy to: TO LICENSEE: With a required copy to: City of Carlsbad Attention: Real Estate Manager 3096 Harding Street Carlsbad, CA 92008 Telephone: (760) 434-2836 City of Carlsbad Attention: City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008 Telephone: (760) 434-2891 ExteNet Systems, Inc. 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Attention: Chief Financial Officer Email: NOTICE@extenetsystems.com ExteNet Systems, Inc. 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Attention: Chief Operations Office Email: NOTICE@extenetsystems.com ExteNet Systems, Inc. 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Attention: General Counsel Telephone: (331) 231-6036 Email: NOTICE@extenetsystems.com All notices, demands or other correspondence in connection with this Master License shall be deemed effective upon delivery or refusal of delivery. Telephone, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step for the parties' convenience and not actual notice. The parties may change the notice addresses above from time-to-time through written notice to the addresses above or the then-current notice address. 50 Jan. 14, 2020 Item #3 Page 55 of 73 28.2. Waivers No failure by either the City or Licensee to insist that the other strictly perform any obligation, term, covenant or condition under this Master License or to exercise any rights, powers or remedies in connection with the other party's failure to strictly perform such obligation, term, covenant or condition no matter how long the failure to insist on such performance or exercise such rights, powers or remedies, will be deemed to waive any default for non-performance. No behaviors, patterns or customs that may arise between the parties with respect to their performance required under this Master License will be deemed to waive any rights, powers or remedies the parties' may have to insist on strict performance. Neither Licensee's payment nor the City's or its Agents' acceptance of any License Fees, Additional Fees or any other sums due to the City or its Agents under this Master License during any such default will be deemed to cure any such default, waive the City's right to demand material compliance with such obligation, term, covenant or condition or be deemed to be an accord and satisfaction for any Claim the City may have for further or additional sums. Any express waiver by either the City or Licensee in connection with any default or obligation to perform any provision, term, covenant or condition under this Master License will: (i) be limited to the specific default or performance for which the express waiver is granted; (ii) not be deemed to be a continuing waiver; and (iii) not affect any other default or performance no matter how similar or contemporaneous such other default or performance may be. The City's or Licensee's consent given in any specific instance in connection with or pursuant to this Master License will not relieve the City or Licensee from the obligation to secure the other's consent in any other or future specific instances, no matter how similar or contemporaneous the request for consent may be. 28.3. Integration; Amendments This Master License constitutes the entire agreement and understanding between the parties, and supersedes any and all prior agreements and understandings, whether written or oral, with respect to the subject matter covered in this Master License. This Master License and any Site Licenses (and any default in connection with this Master License or any Site Licenses) may not be orally changed, waived, discharged, altered, modified, amended or terminated. This Master License and any Site Licenses (and any default in connection with this Master License or any Site Licenses) may not be changed, waived, discharged, altered, modified, amended or terminated, except by a written instrument signed by both parties. 28.4. Interpretation The parties acknowledge and agree that the following interpretive rules will be applicable to this Master License and any Site License: 28.4.1. General Whenever required by the context, the singular includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all 51 Jan. 14, 2020 Item #3 Page 56 of 73 their correlated forms (e.g., the definition for "indemnify" applies to "indemnity," "indemnification," etc.). 28.4.2. Joint and Several Liability In the event that the City consents to enter into this Master License with more than one Licensee, which consent the City may withhold or condition in the City's sole and absolute discretion, the obligations and liabilities imposed on Licensee under this Master License will be joint and several among the multiple Licensees to this Master License. 28.4.3. Captions and Other Reference Material The section captions in this Master License and the table of contents have been included for the parties' convenience and reference and neither the captions nor the table of contents in no way define or limit the scope or intent of any provision in this Master License. 28.4.4. Time References in this Master License to "days" mean calendar days, unless specifically provided otherwise. A "business day" means a day other than a Saturday, Sunday or a bank or City holiday. If the last day in any period to give notice, reply to a notice or to undertake any other action occurs on a day that is not a business day, then the last day for giving notice, replying to the notice or undertaking any other action will be the next business day. Except as modified in this Section, time is of the essence with respect to all provisions in this Master License for which a definite time for performance is specified. 28.4.5. Inclusive Words and/or Phrases Inclusive terms and/or phrases, which includes without limitation the terms and/or phrases "including," "such as" or similar words or phrases that follow any general or specific term, phrase, statement or matter may not be construed to limit the term, phrase, statement or matter to the stated terms, statements or matters, or the listed items that follow the inclusive term or phrase, whether any non-limitation language or disclaimers, such as "including, but not limited to" and/or "including without limitation" are used or not. Rather, the stated term, phrase, statement or matter will be interpreted to refer to all other items or matters that could reasonably fall within such term, phrase, statement or matter given its broadest interpretation. 28.5. Successors and Assigns Except as may be expressly provided in this Master License, the conditions, covenants, promises and terms contained in this Master License will bind and inure to the benefit of the City and Licensee and their respective successors and assigns. 52 Jan. 14, 2020 Item #3 Page 57 of 73 28.6. Brokers The parties represent to each other that neither has had any contact, dealings or communications with any Broker in connection with this Master License, whose commission, if any, would be paid pursuant to a separate written agreement between such Broker and such party with which such Broker contracted. In the event that any Broker perfects any claim or finder's fee based upon any such contact, dealings or communications, the party to such written contract with such Broker shall indemnify the other party from all Claims brought by such Broker. This Section 28.6 will survive this Master License's expiration or earlier termination. 28.7. Governing Law; Venue This Master License must be construed and enforced in accordance with the laws of the State of California and the Carlsbad Municipal Code, without regard to the principles of conflicts of law. This Master License is made, entered and will be performed in the City of Carlsbad, County of San Diego, State of California. Any action concerning this Master License must be brought and heard in the California Superior Court for the County of San Diego or the United States District Court, Southern District of California if federal law applies. 28.8. Litigation Fees and Costs In the event the City or Licensee prevails in an action to enforce its rights under this Master License or individual Site License, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees, incurred in connection with such action. 28.9. Recording Licensee acknowledges and agrees that: (1) this Master License and any Site License affects the City's personal property and therefore cannot be recorded in any official records; (2) Licensee shall not have the right to record this Master License, any Site License, any memorandum or any short-form agreement in relation to this Master License or any Site License; and (3) Licensee shall, at Licensee's sole cost and expense, remove any document or other instrument recorded against the City's title to any City Property promptly upon the City's request or demand. In the event that this Master License or any Site License affects or is deemed to affect any real property owned by the City, Licensee may not record any document or instrument in connection with this Master License or any Site License without the City's prior written consent, which the City may withhold in the City's sole and absolute discretion. 28.10. No Third-Party Beneficiaries Neither this Master License nor any Site License is intended to (and shall not be construed to) give any third party, which includes without limitation Licensee's customers or any other third- 53 Jan. 14, 2020 Item #3 Page 58 of 73 party beneficiaries, any right, title or interest in this Master License, any Site License or the real or personal property(ies) that may be affected by the same. 28.11. Survival All terms, provisions, covenants, conditions and obligations in this Master License and any Site License will survive this Master License's or the subject Site License's expiration or termination when, by their sense or context, such provisions, covenants, conditions or obligations: (1) cannot be observed or performed until this Master License's or any Site License's expiration or earlier termination; (2) expressly so survive; or (3) reasonably should survive this Master License's or any Site License's expiration or earlier termination. Notwithstanding any other provision in this Master License or any Site License, the parties rights to enforce any and all indemnities, representations and warranties given or made to the other party under this Master License, any Site License or any provision in this Master License or any Site License will not be affected by this Master License or any Site License expiration or termination. 28.12. Severability If any provision in this Master License, any Site License or such provision's application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this Master License or any Site License; (2) all other provisions in this Master License, any Site License or their application to any person, entity or circumstance will not be affected; and (3) all other provisions in this Master License, any Site License or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by Law, except to the extent that such enforcement would (a) be manifestly unreasonable or manifestly inequitable under all the circumstances or (b) undermine one or both parties' fundamental purpose in entering this Master License. 28.13 Jointly Drafted This Master License has been jointly negotiated and, although formulated at the outset by counsel for the City, the Master License has been reviewed by counsel for Licensee, and each such counsel has participated in the preparation of the final Master License. The language of this Master License shall be construed as a whole according to its fair meaning and not strictly for or against any party, and it is agreed that no provision hereof shall be construed against any party hereto by virtue of the activities of that party or such party's attorneys. [END OF MASTER LICENSE -SIGNATURE PAGE APPEARS ON NEXT PAGE] 54 Jan. 14, 2020 Item #3 Page 59 of 73 IN WITNESS WHEREOF, the City and Licensee executed this Master License on the Effective Date: THE CITY: LICENSEE: City of Carlsbad, a California municipal corporation ~ By: By: Name: Matt Hall Mayor Title: EVP Date: I llto J JD Date: 11-./z.3/ ,q I ~U/Jl By: Name: Garth Williams Title: EVP -CFO Date: I 2-}2-3 / I 9 APPROVED AS TO FORM: By: t~iii:~t,a fUd'lft/4+,yu Date: Celia A. Brewer City Attorney APPROVED BY CITY COUNCIL RESOLUTION NO. ,;;mo-oo?. City Clerk Date: I I 55 .. Jan. 14, 2020 Item #3 Page 60 of 73 [END OF SIGNATURE PAGE -EXHIBITS & SCHEDULES BEGIN ON NEXT PAGE] 56 Jan. 14, 2020 Item #3 Page 61 of 73 EXHIBIT A FORM OF SITE LICENSE AGREEMENT (appears behind this coversheet - 4 pages) Jan. 14, 2020 Item #3 Page 62 of 73 SITE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER) Pursuant to that certain Master License between the City of Carlsbad, a California municipal corporation (the "City") and ExteNet Systems (California) LLC, a California limited liability company .. ("Licensee"), Licensee submits to the City two partially executed counterparts of this Site License, together with all the materials listed below, as its Site License Application in accordance with Section 6 under the Master License: 1. Exhibit A-1, which contains a summarized list that identifies all Vertical Infrastructure and Utility Infrastructure covered under this Site License Application; 2. Exhibit A-2, which contains detailed construction plans for the proposed installation(s) and an inventory for all proposed Equipment to be installed on the Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) covered under the Site License Application; 3. a License Fee equal to [$ 270.00 * per Site License multiplied (x) by the number of Site Licenses]; 4. all other information and materials required for a complete application for all Regulatory Approvals issued by the City's departments, which the City may update from time-to-time in accordance with applicable Laws; and Licensee acknowledges that: (1) this Site License will not be effective until the City returns a fully executed copy to Licensee; and (2) Licensee will not have the right to access or install Equipment on the License Area until after Licensee has: (a) submitted a complete Acknowledgment Letter to the City with all information and funds required; (b) submitted insurance information to the City as specified in Exhibit B to the Master License; and (c) the City has provided notice to proceed by returning to Licensee a countersigned copy of the Acknowledgment Letter. This Site License is executed and effective on the last date written below and, upon full execution will be the City's authorization for the City to begin its review of the locations and plans and specifications proposed in this Site License Application. [END OF SITE LICENSE -SIGNATURES APPEAR ON NEXT PAGE] Jan. 14, 2020 Item #3 Page 63 of 73 THE CITY: City of Carlsbad, a California municipal corporation By: ___________ _ Name: ------------ Its: ____________ _ Date: ------------- APPROVED AS TO FORM: By: Date: Celia A. Brewer City Attorney LICENSEE: ExteNet Systems (California) LLC, a California limited liability company. By: Its: By:------------ Name: ___________ _ Its: _____________ _ Date: ------------- Jan. 14, 2020 Item #3 Page 64 of 73 EXHIBIT A-1 VERTICAL INFRASTRUCTURE & UTILITY INFRASTRUCTURE LOCATIONS / LICENSE AREA Site License No. [Licensee to list all proposed Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be) requested in this Site License Application] Jan. 14, 2020 Item #3 Page 65 of 73 EXHIBIT A-2 LICENSEE'S PLANS AND SPECIFICATIONS Site License No. [Licensee to attach all plans and specifications, including a traffic control plan for each site, for all Equipment proposed to be installed at all proposed Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be)] Jan. 14, 2020 Item #3 Page 66 of 73 EXHIBIT A-3 FORM OF ACKNOWLEDGMENT LETTER [Licensee to complete and submit after Regulatory Approvals obtained] [insert date] [insert addressee information] RE: Site License No. Dear City Manager: This letter will confirm the following: (1) that Licensee has obtained all the Regulatory Approvals required for the Permitted Use under this Site License, and (2) the Site License Effective Date is ______ , 20_, which is the first day of the month after the City has signed this Acknowledgment Letter. The Initial Term of ten (10) years, expires on ____ _, 20_, unless earlier terminated in accordance with the Master License. The Initial Term will automatically renew for four (4) consecutive 5-year periods (each a Site License Renewal Term) (unless Licensee provides written notice to the City at least sixty (60) days prior to the expiration of the Initial Term or the first Site License Renewal Term, of Licensee's intent not to renew the Site License term. This letter also confirms that Licensee has submitted all required insurance information to the City and the Surety Bond required under Section 27.1 of the Master License. A check for the full License Fee for the first License Year of this Site License shall be provided to the City prior to the Site License Effective Date. Please acknowledge the City's receipt of this letter and the items listed below, and issue the City's approval for Licensee to begin installation of Equipment on the License Area by signing and returning a copy of this letter. Sincerely, By: Its: By: __________ _ Name: ________ _ Its: ------------- Jan. 14, 2020 Item #3 Page 67 of 73 Enc. ] copies of all permits issued by the City's departments ] Licensee's Insurance certificates ] Contractor's insurance certificates ] First License Year's License Fee ] Surety Bond As Required By Section 27.1 of Master License SITE LICENSE NO. APPROVED: By: Date: Scott Chadwick City Manager Jan. 14, 2020 Item #3 Page 68 of 73 EXHIBIT B LICENSEE'S INSURANCE OBLIGATIONS 1. General. A. Prior to performing work under this Agreement, Licensee shall furnish City a certificate of insurance on a standard insurance industry ACORD form. The insurance coverage required must be issued by an insurance company licensed, authorized or permitted to transact business in the State of California, possessing a current A.M. Best, Inc. rating of A-VII or better, and evidenced coverage shall be reasonably satisfactory to City. B. Licensee shall, and shall require any of its contractors while working hereunder to obtain and maintain substantially the same coverage as required of Licensee with reasonable and prudent limits, procure and maintain, until all of their obligations have been discharged the insurances set forth below. C. The insurance requirements set forth in no way limit the indemnity covenants contained in this Agreement. D. City in no way warrants that the insurance limits contained in this Agreement are sufficient to protect Licensee from liabilities that might arise out of the performance of this Agreement by Licensee and its contractors, and Licensee is free to purchase any additional insurance as may be determined necessary. E. Failure to demand evidence of full compliance with the insurance requirements in this Agreement or failure to identify any insurance deficiency will not relieve Licensee from, nor will it be considered a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. 2. Scope and Limits of Insurance. Licensee shall provide coverage with limits of liability stated below. A. Commercial General Liability-Occurrence Form. Licensee must maintain Commercial General Liability insurance with a limit of $2,000,000 per occurrence for bodily injury and property damage and $4,000,000 general aggregate including premises-operations, products and completed operations, independent contractor, contractual liability, personal injury and advertising injury. Jan. 14, 2020 Item #3 Page 69 of 73 B. Commercial Automobile Liability. Licensee must maintain Commercial Automobile Liability insurance in the amount of $1,000,000 combined single limit each accident for bodily injury and property damage covering all of Licensee owned, hired, and/or non-owned vehicles assigned to or used in the performance of Licensee's work or activities under this Agreement. C. Workers Compensation and Employers Liability Insurance. Licensee must maintain Workers Compensation insurance in compliance with the statutory requirements of the state of operation and Employer's Liability with a limit of $1,000,000 for each accident; $1,000,000 disease for each employee; $1,000,000 disease-policy limit. D. Builders' Risk/Installation Floater Insurance. Builders' Risk/Installation Floater Insurance or self-insurance must be maintained until whichever of the following first occurs: (i) final payment has been made; or, (ii) until no person or entity, other than City, has an insurable interest in the property required to be covered. (a) The Builders' Risk/Installation Floater insurance must be endorsed so that the insurance will not be canceled or lapse because of any partial use or occupancy by City. (b) The Builders Risk/Installation Floater insurance must include as named insureds, City, Licensee, and all tiers of contractors and others with an insurable interest in the Work (c) The Licensee is responsible for payment of all deductibles under the Builders' Risk/Installation Floater insurance policy. 3. Additional Policy Provisions Required. A. Miscellaneous Provisions. (1) Licensee's required commercial general and auto liability insurance coverage must be primary insurance with respect to City, its officers, officials, and employees. Any insurance or self-insurance maintained by City, its officers, officials, and employees shall be in excess of the coverage provided by Licensee and must not contribute to it. (2) Licensee's insurance must apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (3) The policies must contain a severability of interest clause and waiver of subrogation against City, its officers, officials, and employees, for losses arising from work performed by Licensee for City. (4) Licensee is required to maintain Commercial General Liability insurance as specified in this Agreement for a minimum period of one (1) year following completion and acceptance of the work. Licensee must submit a Certificate of Insurance evidencing Commercial Jan. 14, 2020 Item #3 Page 70 of 73 General Liability insurance during this period evidencing the insurance requirement and, including the required Additional Insureds set forth herein. (5) If a Certificate of Insurance is submitted as verification of coverage, City will reasonably rely upon the Certificate of Insurance as evidence of coverage but this acceptance and reliance will not waive or alter in any way the insurance requirements or obligations of this Agreement. (6) Upon receipt of notice from its insurer, Licensee shall use its best effort to provide the City with thirty (30) days prior written notice of cancellation of any required coverage that is not replace. Such notice shall be sent directly to City of Carlsbad Attention: Risk Manager Ed Garbo 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2471 Email: ed.garbo@carlsbadca.gov B. City as Additional Insured. The above-referenced policies shall, excluding workers compensation and employer's liability include the City, its officers, officials, and employees as an additional insured as their interest may appear under this Agreement with respect to liability arising out of activities performed by Licensee. Licensor's additional insured status shall (i) be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by Licensee, its employees, agents or independent contractors; (ii) not extend to claims for punitive or exemplary damages arising out of the acts or omissions of Licensor, its employees, agents or independent contractors or where such coverage is prohibited by law or to claims arising out of the gross negligence of Licensor, its employees, agents or independent contractors; and, (iii) not exceed Licensee's indemnification obligation under this Agreement, if any. 4. Option to Self Insure Notwithstanding the forgoing, and provided Licensee maintains an equity balance of at least One Hundred Fifty Million Dollars ($150,000,000) ("Minimum Equity Balance"), Licensee may, in its sole discretion, self insure any of the required insurance under the same terms as required by this Agreement. In the event Licensee elects to self-insure its obligation under this Agreement to include Licensor as an additional insured, the following conditions apply: (i) Licensor shall promptly and no later than thirty (30) days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) Licensor shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Licensee; and (iii) Licensor shall fully cooperate with Licensee in the defense of the claim, demand, lawsuit, or Jan. 14, 2020 Item #3 Page 71 of 73 the like. Within thirty (30) days of receipt of City's written request for same, which request must be accompanied by this Section 4, Option to Self-Insure, and not be made by the City to Licensee more than one (1) time in any consecutive twelve (12) month period during the Term of this Master License, Licensee shall cause an authorized representative of Licensee or Licensee's ultimate parent company, _____ to certify to the City that as of the most recent unaudited financial statement of Licensee, Licensee maintains the Minimum Equity Balance required hereunder for the right to self-insure any of the required insurance hereunder. The right to self-insure hereunder is limited to Licensee and any Affiliate of Licensee which is under the ultimate control of ______ , provided that any such Affiliate of Licensee must maintain the Minimum Equity Balance. Otherwise the right to self-insure required coverages under this Master License is prohibited unless the City in its sole discretion otherwise approves of the party seeking to self-insure required coverages. Jan. 14, 2020 Item #3 Page 72 of 73 SCHEDULE 1 VIOLATION INITIAL NOTICE EACH FOLLOW-UP NOTICE* unauthorized installations $750 $500 failure to make required $500 $500 repairs within the prescribed time period under the Master Licensee following Licensee's receipt of written notice from the City of the need to make required repairs access violations $500 $500 insurance violations $500 $500 *By mutual agreement, the City shall not issue a follow-up Default Fee Notice to Licensee more than one (1) time in any consecutive thirty (30) day period, or until the expiration of the applicable cure period under the Master License to which the alleged violation applies, whichever date is later to occur Jan. 14, 2020 Item #3 Page 73 of 73 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 12/30/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER IMA, Inc. -Dallas Division ~~1~~ Meagan~i~~~ry_er _ _ _ _ _ __ l FAX-------------- 6200 LBJ Freeway wg:iJQ~Ex_!J: ~7~-458-_87.00 _ -_ _ _ _ _ _ ~ [AfC:~Q}:_ 9_Z2~~-~7§_5 _ _ Suite 200 ~DAJ~~s: __ meagan.rif_h~berger@imacqp-.c:_0_111 _ ----------------- Dallas TX 75240 ---- - INSURER(S) AFFORDING COVERAGE ( NAIC# INSURER A: Vc1II~ Fo_1'9e Insurance Co. -I 20508 -- - -- - - - - - ----r INSURED EXTESYS INSURER B , Nc1ti()_m1I Fir~~-..Q_ompariy_()f_tf_artf_orcj. _ 20478 ExteNet Systems Inc; ExteNet Systems (California), - - - -i - ------- INSURER c : Continental Insurance Corr1pjlily_ ____ 35289 - --_j_ ----- -LLC; ExteNet Systems New York Inc; ExteNet Systems (Virginia) -3030 Warrenville Rd., 3rd FL INSURE~[)_:_ Amerif9n_ Cc!SlJ_alty Co. Qf B-ec1dillg, PA ---l -~4?7_ - Lisle IL 60532 INSURER E: Underwriters at Lloy{fs London _______ -l -~1li... _ INSURER F : Berklev Insurance Comoanv ! 32603 COVERAGES CERTIFICATE NUMBER· 310315334 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1~1: -~P~O;;-;N-;-U~;;E---r~~~~I~~:: POLICY NUMBER ~~~hlgT-tWv~1,~~~~i}:<'~·Vv11 -------~IM~TS------ X 1 1 1 1 I A COMMERCIAL GENERAL LIABILITY Y I Y 4013130714 1/2/2020 1 1/2/2021 , 1 E_AC.i:i~~~~_E __ -j !_1,()0_Q,_O()Q ___ _ 1 ·-x - 1 □AMAGE To RENTED _ _ j CLAIMS-MADE I OCCUR I I I PREMISESJ.Ea occurrenc;,) -l $1,000,000 _ _ _ _ 1 _ _ __ _ _ _ _ I I MED EXP (Any one person) _j $ 15.000 ______ _ I I PERSONAL & ADV INJURY j $1,000,000 I 1--------~-------- I i GENERAL AGGREGATE -i $ 2,000_,oo_o 1 _GEN'L AGGRE~ATE LIMIT APPIJE,S PER , PoLlcY I x_ 1 j:8,: , x I Loc I OTHER: i i i i PRODUCTS -COMP/OP AGc;_j $2,000,000 ___ _ I I $ B AUTOMOBILE LIABILITY ANY AUTO OWNED I SCHEDULED y y 4013130681 1/2/2020 j 1/2/2021 ! f~~~~~<i~~u5INGLE LIMIT I $ 1,000,000 I ; BODILY_J_NJlJR'r' (f'_er ~ers_on)_; ~ 1 _ , AUTOS ONLY 1 _ 1 AUTOS I X ~0RTigiS ONLY 1• ~ J ~~f oi'6%i~ I L BODILY INJURY (Per accident) $ PROPERTY DAMAGE--_, --------- ! lPer _accJden_lJ _ _ _ _ _ : ~ I I I I C I X I UMBRELLA LIAB I X I OCCUR I EXCESS LIAB 1-7 I-~ _ . _ ,-__ L J.C~A~S~A_[)EI y I I OED i X i RETENTION$ <:rn nnn I g I :ii~:~~;~t:s~~~~~~~:v I 'ANYPROPRIETOR/PARTNER/EXECUTIVE ffi i j OFFICER/MEMBER EXCLUDED? L'.::_J IN/ A (Mandatory In NH) I If yes, describe under DESCRIPTION OF OPERATIONS below E I PROFESSIONAL/ CYBER LIABILITY F POLLUTION LIABILITY I I y 6056871852 i Y I 6056871821 I 6056871849 I I I MPL 186933720 PCADB50106170120 I I 1/2/2020 I I 1/2/2020 1/2/2020 ' I 1/2/2020 1/2/2020 I I I ' I I i 1/2/2021 1/2/2021 1/2/2021 1/2/2021 1/2/2021 I $ I EACH OCCURRENCE AGGREGATE I $25,000,000 t $25,000,000 1$ X I ~~fTUTE I i ~~H-I -L __ -------'-------1 -------- E.L. EACH ACCIDENT I $1,000,000 EL DISEASE -EA EMPLQ_YE_Ej _$_ 1,IJOQ,000 E.L. DISEASE -POLICY LIMIT i $ 1,000,000 LIMIT I $10,000,000 LIMIT j $10,000,000 I DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (A ORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holders are included as Additional Insured on the General, Automobile and Umbrella Liability Policies if required by written contract or agreement subject to the policy terms and conditions. A Waiver of Subrogation is provided in favor of "Additional Insured" on the General, Automobile, Umbrella Liability and Workers Compensation Policies if required by written contract or agreement subject to policy terms and conditions. This Insurance is Primary and Non-Contributory on the General, Automobile and Umbrella Liability Policies subject to policy terms and conditions. See Attached ... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Carlsbad ACCORDANCE WITH THE POLICY PROVISIONS. Attn: Real Estate Manager 3096 Harding Street AUTHORIZED REPRESENTATIVE Carlsbad CA 92008 /1/l I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: EXTESYS --------------------- LO C #: -------- ADDITIONAL REMARKS SCHEDULE Page of AGENCY NAMED INSURED IMA, Inc. -Dallas Division ExteNet Systems Inc; ExteNet Systems (California), LLC; ExteNet Systems New York Inc; ExteNet Systems POLICY NUMBER (Virginia) -3030 Warrenville Rd., 3rd FL Lisle IL 60532 CARRIER I NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE Any Exclusion for Liability within 50 feet of railroad tracks has been deleted. 30 Day Notice of Cancellation with respects to the General, Automobile, Umbrella Liability and Workers Compensation Policies if required by written contract or agreement subject to the policy terms and conditions. Certificate Holder(s): The City of Carlsbad, its officers, officials and employees. ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART It is understood and agreed as follows: I. The WHO IS AN INSURED section is amended to add as an Insured any person or organization whom the Named Insured is required by written contract to add as an additional insured on this coverage part, including any such person or organization, if any, specifically set forth on the Schedule attachment to this endorsement. However, such person or organization is an Insured only with respect to such person or organization's liability for: A. unless paragraph B. below applies, 1. bodily injury, property damage, or personal and advertising injury caused in whole or in part by the acts or omissions by or on behalf of the Named Insured and in the performance of such Named lnsured's ongoing operations as specified in such written contract; or 2. bodily Injury or property damage caused in whole or in part by your work and included in the products- completed operations hazard, and only if a. the written contract requires the Named Insured to provide the additional insured such coverage; and b. this coverage part provides such coverage. B. bodily Injury, property damage, or personal and advertising injury arising out of your work described in such written contract, but only if: 1. this coverage part provides coverage for bodily injury or property damage included within the products completed operations hazard; and 2. the written contract specifically requires the Named Insured to provide additional insured coverage under the 11-85 or 10-01 edition of CG2010 or the 10-01 edition of CG2037. II. Subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: A. coverage broader than required by the written contract; or B. a higher limit of insurance than required by the written contract. Ill. The insurance granted by this endorsement to the additional insured does not apply to bodily injury, property damage, or personal and advertising injury arising out of: A. the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including: 1. the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications, and 2. supervisory, inspection, architectural or engineering activities; or B. any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this coverage part. IV. Notwithstanding anything to the contrary in the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS, the Condition entitled Other Insurance, this insurance is excess of all other insurance available to the additional insured whether on a primary, excess, contingent or any other basis. However, if this insurance is required by written CNA7507g)()( (1-15) Page 1 of 2 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS , INC . Policy No: 401313071 4 Endorsement No: 8 ~CNAAIRJghts-lndudesa,py,lghtedmalerialol.....,,.__Ofl'a lnc.,-upotnwaloo CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement contract to be primary and non-contributory, this insurance will be primary and non-contributory relative solely to insurance on which the additional insured is a named insured. V. Solely with respect to the insurance granted by this endorsement, the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: The Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended with the addition of the following: Any additional insured pursuant to this endorsement will as soon as practicable: 1. give the Insurer written notice of any claim, or any occurrence or offense which may result in a claim; 2. except as provided in Paragraph IV. of this endorsement, agree to make available any other insurance the additional insured has for any loss covered under this coverage part; 3. send the Insurer copies of all legal papers received, and otherwise cooperate with the Insurer in the investigation, defense, or settlement of the claim; and 4, tender the defense and indemnity of any claim to any other insurer or self insurer whose policy or program applies to a loss that the Insurer covers under this coverage part. However, if the written contract requires this insurance to be primary and non-contributory, this paragraph (4) does not apply to insurance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured. VI. Solely with respect to the insurance granted by this endorsement, the section entitled DEFINITIONS is amended to add the following definition: Written contract means a written contract or written agreement that requires the Named Insured to make a person or organization an additional insured on this coverage part, provided the contract or agreement: A. is currently in effect or becomes effective during the term of this policy; and B. was executed prior to: 1. the bodily injury or property damage; or 2. the offense that caused the personal and advertising injury for which the additional insured seeks coverage. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA75079XX (1 -15) Page 2 of 2 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No: 8 Copyng/1 CNA M R,glltS Resefwd lnClJdes c:opynghled material ol k-...nnce SeMces Office Inc. w.th ils pom..ion. -!!!!!! CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement It is understood and agreed that this endorsement amends the COMMERCIAL GENERAL LIABILITY COVERAGE PART as follows. If any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement with respect to such provision do not apply. TABLE OF CONTENTS 1. Additional Insureds 2. Additional Insured -Primary And Non-Contributory To Additional lnsured's Insurance 3. Bodily Injury -Expanded Definition 4. Broad Knowledge of Occurrence/ Notice of Occurrence 5. Broad Named Insured 6. Broadened Liability Coverage For Damage To Your Product And Your Work 7. Contractual Liability -Railroads 8. Electronic Data Liability 9. Estates, Legal Representatives and Spouses 10. Expected Or Intended Injury -Exception for Reasonable Force 11. General Aggregate Limits of Insurance -Per Project 12. In Rem Actions 13. Incidental Health Care Malpractice Coverage 14. Joint Ventures/Partnership/Limited Liability Companies 15. Legal Liability -Damage To Premises I Alienated Premises / Property In The Named lnsured's Care, Custody or Control 16. Liquor Liability 17. Medical Payments 18. Non-owned Aircraft Coverage 19. Non-owned Watercraft 20. Personal And Advertising Injury -Discrimination or Humiliation 21. Personal And Advertising Injury -Contractual Liability 22. Property Damage -Elevators 23. Supplementary Payments 24. Unintentional Failure To Disclose Hazards 25. Waiver of Subrogation -Blanket 26. Wrap-Up Extension: OCIP CCIP, or Consolidated (Wrap-Up) Insurance Programs CNA74705XX (1-15) Page 1 of 17 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS , INC. PollcyNo: 401313071 4 Endorsement No: 5 COpyngl1 CNA M Ri!1U Res«Y9d lndudes oopyrighted material ol lnourance Sefviceo Offlce Ire.. -lb pormulon CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement 1. ADDITIONAL INSUREDS a. WHO IS AN INSURED is amended to include as an Insured any person or organization described in paragraphs A. through H. below whom a Named Insured is required to add as an additional insured on this Coverage Part under a written contract or written agreement, provided such contract or agreement: (1) is currently in effect or becomes effective during the term of this Coverage Part; and (2) was executed prior to: (a) the bodily Injury or property damage; or (b) the offense that caused the personal and advertising Injury, for which such additional insured seeks coverage. b. However, subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: (1) a higher limit of insurance than required by such contract or agreement; or (2) coverage broader than required by such contract or agreement, and in no event broader than that described by the applicable paragraph A. through H. below. Any coverage granted by this endorsement shall apply only to the extent permissible by law. A. Controlling Interest Any person or organization with a controlling interest in a Named Insured, but only with respect to such person or organization's liability for bodily Injury, property damage or personal and advertising injury arising out of: 1. such person or organization's financial control of a Named Insured; or 2. premises such person or organization owns, maintains or controls while a Named Insured leases or occupies such premises; provided that the coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. 8. Co-owner of Insured Premises A co-owner of a premises co-owned by a Named Insured and covered under this insurance but only with respect to such co-owner's liability for bodily Injury, property damage or personal and advertising injury as co-owner of such premises. C. Lessor of Equipment Any person or organization from whom a Named Insured leases equipment, but only with respect to liability for bodily Injury, property damage or personal and advertising Injury caused, in whole or in part, by the Named lnsured's maintenance, operation or use of such equipment, provided that the occurrence giving rise to such bodily Injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. 0. Lessor of Land Any person or organization from whom a Named Insured leases land but only with respect to liability for bodily Injury, property damage or personal and advertising Injury ansing out of the ownership, maintenance or use of such land, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising Injury takes place prior to the termination of such lease. The CNA74705XX (1-15) Page 2 of 17 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No: 5 Copynghl CNA JJ Rqo -Includes ccpynghted ma.....i d Insurance SeMces Offic>J Inc , w<h .. pe<TTaSl0fl --= ;;;;;; iii CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. E. Lessor of Premises An owner or lessor of premises leased to the Named Insured, or such owner or lessor's real estate manager. but only with respect to liability for bodlly Injury, property damage or personal and advertising injury arising out of the ownership. maintenance or use of such part of the premises leased to the Named Insured, and provided that the occurrence giving rise to such bodlly Injury or property damage, or the offense giving rise to such personal and advertising Injury, takes place prior to the termination of such lease. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. F. Mortgag!!, Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee or receiver's liability for bodily Injury, property damage or personal and advertising injury arising out of the Named lnsured's ownership, maintenance, or use of a premises by a Named Insured. The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. G. State or Governmental Agency or Subdivision or Political Subdivisions -Permits A stale Of governmental agency or subdivision Of political subdivision that has issued a permit or authOfization but only with respect to such state or governmental agency or subdivision or political subdivision's liability for bodily Injury, property damage or personal and advertising Injury arising out of: 1. the tollow1ng hazards in connection with premises a Named Insured owns, rents, or controls and to which this insurance applies: a. the existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or b, the construction, erection, or removal of elevators; or c. the ownership, maintenance or use of any elevators covered by this insurance; or 2. the permitted or authorized operations performed by a Named Insured or on a Named lnsured's behalf. The coverage granted by this paragraph does not apply to: a. Bodily injury, property damage or personal and advertising injury arising out of operations performed for the state or governmental agency or subdivision or political subdivision; or b. Bodily injury or property damage included within the products-completed operations hazard. With respect to this provision's requirement that additional insured status must be requested under a written contract or agreement, the Insurer will treat as a written contract any governmental permit that requires the Named Insured to add the governmental entity as an additional insured. H. Trade Show Event Lessor 1. With respect to a Named tnsured's participation in a trade show event as an exhibitor, presenter or displayer, any person or organization whom the Named Insured 1s required to include as an additional insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising Injury caused by: CNA74705XX (1-15) Page 3 of 17 The Continental I nsurance Co. Insured Name: EXTENET SYSTEMS, INC. PolicyNo: 4013130714 Endorsement No· 5 Copyngl,ICW.M Righ1S-lndudnc,opy,tgl,ted ....-o11noun1nco 5<oMceoOfflco inc,, W1h u poonwolon CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement a. the Named lnsured's acts or omissions: or b. the acts or omissions of those acting on the Named lnsured's behalf, in the performance of the Named lnsured's ongoing operations at the trade show event premises during the trade show event. 2. The coverage granted by this paragraph does not apply to bodily Injury or property damage included within the products-<:ompleted operations hazard. 2. ADDITIONAL INSURED • PRIMARY AND NON-CONTRIBUTORY TO ADDITIONAL INSURED'$ INSURANCE The Other Insurance Condition in the COMMERCIAL GENERAL LIABILITY CONDITIONS Section Is amended to add the following paragraph: If the Named Insured has agreed in writing in a contract or agreement that this insurance is primary and non- contributory relative to an additional insured's own insurance. then this insurance is primary, and the Insurer will not seek contribution from that other insurance. For the purpose of this Provision 2., the additional insured's own insurance means insurance on which the additional insured is a named insured. Otherwise. and notwithstanding anything to the contrary elsewhere in this Condition, the insurance provided to such person or organization is excess of any other insurance available to such person or organization. 3. BODILY INJURY -EXPANDED DEFINITION Under DEFINITIONS, the definition of bodily Injury is deleted and replaced by the following: Bodily injury means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of the physical injury, sickness or disease. 4. BROAD KNOWLEDGE OF OCCURRENCE/ NOTICE OF OCCURRENCE Under CONDITIONS, the condition entitled Duties in The Event of Occurrence, Offense, Claim or Suit is amended to add the following provisions: A. BROAD KNOWLEDGE OF OCCURRENCE The Named Insured must give the Insurer or the Insurer's authorized representative notice of an occurrence, offense or claim only when the occurrence, offense or claim is known to a natural person Named Insured, to a partner, executive officer, manager or member of a Named Insured, or an employee designated by any of the above to give such notice. B. NOTICE OF OCCURRENCE The Named lnsured's rights under this Coverage Part will not be prejudiced if the Named Insured fails to give the Insurer notice of an occurrence, offense or claim and that failure is solely due to the Named lnsured's reasonable belief that the bodily injury or property damage is not covered under this Coverage Part. However. the Named Insured shall give written notice of such occurrence, offense or claim to the Insurer as soon as the Named Insured is aware that this insurance may apply to such occurrence, offense or claim. 5. BROAD NAMED INSURED WHO IS AN INSURED is amended to delete its Paragraph 3. in its entirety and replace it with the following: 3. Pursuant to the limitations described in Paragraph 4. below, any organization in which a Named Insured has management control: a. on the effective dale of this Coverage Part: or CNA74705XX (1-15) Page 4 of 17 The Continental Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Pohcy No: 4013130714 Endorsement No: 5 Q)pynglw CNA loJ R,glU -lndudos C01'Y"!jhted mo-ol ins.nnc:. 5eMces Office Inc, '""'1 a - CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement b. by reason of a Named Insured creating or acquiring the organization during the policy period, qualifies as a Named Insured, provided that there is no other similar liability insurance, whether primary, contributory, excess, contingent or otherwise, which provides coverage to such organization, or which would have provided coverage but for the exhaustion of its limit, and without regard to whether its coverage is broader or narrower than that provided by this insurance. But this BROAD NAMED INSURED provision does not apply to: (a) any partnership, limited liability company or joint venture; or (b) any organization for which coverage is excluded by another endorsement attached to this Coverage Part. For the purpose of this provision. management control means: A. owning interests representing more than 50% of the voting, appointment or designation power for the selection of a majority of the Board of Directors of a corporation; or B. having the right, pursuant to a written trust agreement, to protect, control the use of, encumber or transfer or sell property held by a trust. 4. With respect to organizations which qualify as Named Insureds by virtue of Paragraph 3. above, this insurance does not apply to: a. bodily injury or property damage that first occurred prior to the date of management control, or that first occurs after management control ceases; nor b. personal or advertising Injury caused by an offense that first occurred prior to the date of management control or that first occurs after management control ceases. 5. The insurance provided by this Coverage Part applies to Named Insureds when trading under their own names or under such other trading names or doing-business-as names (dba) as any Named Insured should choose to employ. 6. BROADENED LIABILITY COVERAGE FOR DAMAGE TO YOUR PRODUCT AND YOUR WORK A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete exclusions k. and I. and replace them with the following: This insurance does not apply to: k. Damage to Your Product Property damage to your product arising out of it, or any part of it except when caused by or resulting from: (1) flre; (2) smoke; (3) collapse; or (4) explosion. I. Damage to Your Work Property damage to your work arising out of it, or any part of it and included in the products-completed operations hazard. This exclusion does not apply: (1) If the damaged work, or the work out of which the damage arises, was performed on the Named lnsured's behalf by a subcontractor; or CNA74705XX (1-15) Page 5 of 17 The Continental Insurance Co. Insured Name: EXT EN ET SYSTEMS' INC. Policy No: 4013130714 Endorsement No: 5 Copyr,glW CNA,., Rights R__, lndudel c:cpy,1ghte<I ma1erial ol klOufw>ce SeMces Office Inc.. -.. po,nwolon CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement (2) If the cause of loss to the damaged work arises as a result of: (a) fire; (b) smoke; (c) collapse; or (d) explosion. B. The following paragraph is added to LIMITS OF INSURANCE: Subject to 5. above, $100,000 is the most the Insurer will pay under Coverage A for the sum of damages arising out of any one occurrence because of property damage to your product and your work that is caused by fire, smoke, collapse or explosion and is included within the product-completed operations hazard. This sublimit does not apply to property damage to your work if the damaged work. or the work out of which the damage arises. was performed on the Named lnsured's behalf by a subcontractor. C. This Broadened Liability Coverage For Damage To Your Product And Your Work Provision does not apply if an endorsement of the same name is attached to this policy. 7. CONTRACTUAL LIABILITY -RAILROADS With respect to operations performed within 50 feet of railroad pro~!J.Y. the definit10n of insured contract 1s replaced by the following Insured Contract means a. A contract for a lease of premises However, that por110n of the contract for a lease of premises that indemnifies any person or orgamzauon for damage by fire to premises while rented to a Named Insured or temepranly occupied ya Named Insured with permission of the owner 1s not an Insured contract, b. A sidetrack agreement c. An easement or license agreement d. An obligation. as reguired ~ ordinance to indemnify a mumopahty exce t 1n connect10n with work for a mumapahty e. An elevator maintenance agreement f. Thal part of any other contract or agreement pertaining to the Named lnsured's business (including an 1ndemrnficallon of a murnc1pahty 1n connection with work performed for a mumc1pahty) under which the Named Insured assumes the tort hab1hty of another party to pay for bodily Injury or property damage to a third person or organization Ton hab1l1ty means a liability that would be 1ml?()sed by law m the absence of any contract or ~reement Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect. engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; (2) Under which the Insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 8. ELECTRONIC DATA LIABILITY CNA74705XX (1-15) Page 6 of 17 The Continental Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No: 5 Copynohc CNA M Rights Reserved lndudn copynghted material cl Insurance Services Office Inc., wrth Ila ~ = = CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete exclusion p. Electronic Data and replace it with the following: This insurance does not apply to: p. Access Or Disclosure Of Confidential Or Personal Information And Data-related Liability Damages arising out of: (1) any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets. processing methods, customer lists. financial information. credit card information, health information or any other type of nonpublic information; or (2) the loss of, loss of use of, damage to, corruption of, inability to access. or inability to manipulate electronic data that does not result from physical injury to tangible property. However, unless Paragraph (1) above applies, this exclusion does not apply to damages because of bodily injury. This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses, public relation expenses or any other loss, cost or expense incurred by the Named Insured or others arising out of that which is described in Paragraph (1) or (2) above. B. The following paragraph is added to LIMITS OF INSURANCE: Subject to 5. above, $100,000 is the most the Insurer will pay under Coverage A for all damages arising out of any one occurrence because of property damage that results from physical injury to tangible property and arises out of electronic data. C. The following definition is added to DEFINITIONS: Electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software (including systems and applications software), hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. D. For the purpose of the coverage provided by this ELECTRONIC DATA LIABILITY Provision. the definition of property damage in DEFINITIONS is replaced by the following: Property damage means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it; or c. Loss of, loss of use of, damage to, corruption of, inability to access, or inability to properly manipulate electronic data, resulting from physical injury to tangible property. All such loss of electronic data shall be deemed to occur at the time of the occurrence that caused it. For the purposes of this insurance, electronic data is not tangible property. E. If Electronic Data Liability is provided at a higher limit by another endorsement attached to this policy, then the $100,000 limit provided by this ELECTRONIC DATA LIABILITY Provision is part of, and not in addition to, that higher limit. 9. ESTATES, LEGAL REPRESENTATIVES, AND SPOUSES The estates, heirs, legal representatives and spouses of any natural person Insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, legal representatives, and spouses only for CNA74705XX (1-15) Page 7 of 17 The Cont i nental I nsurance Co . Insured Name: E.XTENET SYSTEMS, INC . Policy No: 4013130714 Endorsement No· 5 Copyngto CNA /oJ RJghts R-Includes cx,pyrtghted main! of '"°""'"°" SeMces Office Inc., with ill -Ion CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement claims arising solely out of their capacity or status as such and. in the case of a spouse. where such claim seeks damages from marital community property. jointly held property or property transferred from such natural person Insured to such spouse. No coverage is provided for any act. error or omission of an estate. heir. legal representative. or spouse outside the scope of such person's capacity or status as such. provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are Insureds with respect to such spouses' acts. errors or omissions in the conduct of the Named lnsured's business. 10. EXPECTED OR INTENDED INJURY-EXCEPTION FOR REASONABLE FORCE Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability. the paragraph entitled Exclusions is amended to delete the exclusion entitled Expected or Intended Injury and replace it with the following: This insurance does not apply to: Expected or Intended Injury Bodily Injury or property damage expected or intended from the standpoint of the Insured. This exclusion does not apply to bodily Injury or property damage resulting from the use of reasonable force to protect persons or property. 11. GENERAL AGGREGATE LIMITS OF INSURANCE · PER PROJECT A. For each construction project away from premises the Named Insured owns or rents. a separate Construction Project General Aggregate Limit. equal to the amount of the General Aggregate Limit shown in the Declarations. is the most the Insurer will pay ror the sum of: 1. All damages under Coverage A. except damages because of bodily injury or property damage included in the products-completed operations hazard; and 2. All medical expenses under Coverage c. that arise from occurrences or accidents which can be attributed solely to ongoing operations at that construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations. nor the Construction Project General Aggregate Limit of any other construction project. B. All: 1. Damages under Coverage B, regardless of the number of locations or construction projects involved; 2. Damages under Coverage A. caused by occurrences which cannot be attributed solely to ongoing operations at a single construction project. except damages because of bodily Injury or property damage included in the products-completed operations hazard; and 3. Medical expenses under Coverage C caused by accidents which cannot be attributed solely to ongoing operations at a single construction project, will reduce the General Aggregate Limit shown in the Declarations. C. The limits shown in the Declarations for Each Occurrence. for Damage To Premises Rented To You and for Medical Expense continue to apply. but will be subject to either the Construction Project General Aggregate Limit or the General Aggregate Limit shown in the Declarations, depending on whether the occurrence can be attributed solely to ongoing operations at a particular construction project. D. When coverage for liability arising out of the products-completed operations hazard is provided, any payments for damages because of bodily Injury or property damage included in the products-completed operations hazard will reduce the Products-Completed Operations Aggregate Limit shown in the Declarations, regardless of the number of projects involved. CNA74705XX (1-15) Page 8 of 17 The Conc1nencal Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endo~ementNo· 5 Copyngtc CNA IJ Rights Reserved h:ludn cx,pynghled m,iler,al of lns<nnce 5eMoH Offioe Inc , With U porm,oskln --!5 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement E. If a single construction project away from premises owned by or rented to the Insured has been abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. F. The provisions of LIMITS OF INSURANCE not otherwise modified by this endorsement shall continue to apply as stipulated. 12. IN REM ACTIONS A quasi in rem action against any vessel owned or operated by or for the Named Insured, or chartered by or for the Named Insured, will be treated in the same manner as though the action were in personam against the Named Insured. 13. INCIDENTAL HEALTH CARE MALPRACTICE COVERAGE Solely with respect to bodily injury that arises out of a health care incident: A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Insuring Agreement is amended to replace Paragraphs 1.b.(1) and 1.b.(2) with the following: b. This insurance applies to bodily Injury provided that the professional health care services are incidental to the Named lnsured's primary business purpose, and only if: (1) such bodily injury is caused by an occurrence that takes place in the coverage territory. (2) the bodily injury first occurs during the policy period. All bodily injury arising from an occurrence will be deemed to have occurred at the time of the first act, error, or omission that is part of the occurrence; and B. Under COVERAGES, Coverage A - Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to: i. add the following to the Employers Liability exclusion: This exclusion applies only if the bodily injury arising from a health care incident is covered by other liability insurance available to the Insured (or which would have been available but for exhaustion of its limits). Ii. delete the exclusion entitled Contractual Liability and replace it with the following: This insurance does not apply to: Contractual Liability the lnsured's actual or alleged liability under any oral or written contract or agreement, including but not limited to express warranties or guarantees. iii. add the following additional exclusions: This insurance does not apply to: Discrimination any actual or alleged discrimination, humiliation or harassment, including but not limited to claims based on an individual's race, creed, color, age, gender, national origin, religion, disability, marital status or sexual orientation. Dishonesty or Crime Any actual or alleged dishonest, criminal or malicious act, error or omission. Medicare/Medicaid Fraud Policy No· 4013130714 CNA74705XX (1-15) Page 9 of 17 Endorsement No: 5 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS, INC . C<,py,,gto CNAA.I Rights -Includes copyrighted -ol ~ -Offloe Inc., With .. pemwolon CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement any actual or alleged violation of law with respect to Medicare, Medicaid, Tricare or any similar federal, state or local governmental program. Services Excluded by Endorsement Any health care incident for which coverage is excluded by endorsement. C. DEFINITIONS is amended to: i. add lhe following definitions: Health care incident means an act, error or omission by the Named lnsured's employees or volunteer workers in the rendering of: a. professional health care services on behalf of the Named Insured or b. Good Samaritan services rendered in an emergency and for which no payment is demanded or received. Professional health care services means any health care services or the related furnishing of food, beverages, medical supplies or appliances by the following providers in their capacity as such but solely to the extent they are duly licensed as required: a. Physician; b. Nurse; c. Nurse practitioner; d. Emergency medical technician; e. Paramedic; f. Dentist; g. Physical therapist; h. Psychologist; i. Speech therapist; j. Other allied health professional: or Professional health care services does not include any services rendered in connection with human clinical trials or product testing. Ii. delete the definition of occurrence and replace it with the following: Occurrence means a health care incident. All acts, errors or omissions that are logically connected by any common fact, circumstance, situation, transaction, event, advice or decision will be considered to constitute a single occurrence; iii. amend the definition of Insured to: a. add the following: the Named lnsured's employees are Insureds with respect to: (1) bodily injury to a co-employee while in the course of the co-employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; and CNA74705XX (1-15) Page 10 of 17 The Continental Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Pohcy No: 4013130714 Endorsement No: 5 Copyngt<CNAM Rqu-lrdidn~mo1enal o(lnsuance 5eMc:es Office Inc:, WCll u pomas,cn CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement (2) bodily injury to a volunteer worker while performing duties related to the conduct of the Named lnsured's business; when such bodily Injury arises out of a health care incident. the Named lnsured's volunteer workers are Insureds with respect to: (1) bodily injury to a co-volunteer worker while performing duties related to the conduct of the Named lnsured's business; and (2) bodily injury to an employee while in the course of the employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; when such bodily Injury arises out of a health care Incident. b. delete Subparagraphs (a), (b). (c) and (d) of Paragraph 2.a.(1) of WHO IS AN INSURED. D. The Other Insurance condition is amended to delete Paragraph b.(1) in its entirety and replace it with the following: Other Insurance b. Excess Insurance (1) To the extent this insurance applies, it is excess over any other insurance, self insurance or risk transfer instrument, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by the Named Insured to be excess of this coverage. 14. JOINT VENTURES / PARTNERSHIP/ LIMITED LIABILITY COMPANIES WHO IS AN INSURED is amended to delete its last paragraph and replace it with the following: No person or organization is an Insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations, except that if the Named Insured was a Joint venturer, partner, or member of a limited liability company and such joint venture, partnership or limited liability company terminated prior to or during the policy period, such Named Insured is an Insured with respect to its interest in such joint venture, partnership or limited liability company but only to the extent that: a. any offense giving rise to personal and advertising injury occurred prior to such termination dale, and the personal and advertising Injury arising out of such offense first occurred after such termination date; b. the bodily Injury or property damage first occurred after such termination date; and c. there is no other valid and collectible insurance purchased specifically to Insure the partnership, Joint venture or limited liability company; and If the joint venture, partnership or limited liability company is or was insured under a consolidated (wrap-up) insurance program, then such insurance will always be considered valid and collectible for the purpose of paragraph c. above. But this provision will not serve to exclude bodily injury, property damage or personal and advertising injury that would otherwise be covered under the Contractors General Liability Extension Endorsement provision entitled WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS, Please see that provision for the definition of consolidated (wrap-up) insurance program. 15. LEGAL LIABILITY -DAMAGE TO PREMISES / ALIENATED PREMISES / PROPERTY IN THE NAMED INSURED'S CARE, CUSTODY OR CONTROL A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete exclusion j. Damage to Property in its entirety and replace it with the following: This insurance does not apply to: CNA74705XX (1-15) Page 11 of 17 The Continental I nsurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No· 4013130714 Endorsement No· 5 Ccpyrlglt CW. M Rlgl1ts -lr,Q,doo oopynghted matortal ol .,...ranee -Office Inc., -cs~ CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement j. Damage to Property Property damage to: (1) Property the Named Insured owns. rents. or occupies, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises the Named Insured sells, gives away or abandons, if the property damage arises out of any part of those premises; (3) Property loaned to the Named Insured; (4) Personal property in the care, custody or control of the Insured; (5) Thal particular part of real property on which the Named Insured or any contractors or subcontractors working directly or indirectly on the Named lnsured's behalf are performing operations, if the property damage arises out of those operations: or (6) That particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on ii. Paragraphs (1), (3) and (4) of this exclusion do not apply to property damage (other than damage by fire) to premises rented to the Named Insured or temporarily occupied by the Named Insured with the permission of the owner, nor to the contents of premises rented to the Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in LIMITS OF INSURANCE. Paragraph (2) of this exclusion does not apply if the premises are your work. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph (6) of this exclusion does not apply to property damage included In the products-completed operations hazard. Paragraphs (3) and (4) of this exclusion do not apply to property damage to: I. tools, or equipment the Named Insured borrows from others, nor 11. other personal property of others in the Named lnsured's care, custody or control while being used in the Named lnsured's operations away from any Named lnsured's premises. However, the coverage granted by this exception to Paragraphs (3) and (4) does not apply to: a. property at a job site awaiting or during such property's installation, fabrication, or erection; b. property that is mobile equipment leased by an Insured; c. property that is an auto, aircraft or watercraft; d. property in transit; or e. any portion of property damage for which the Insured has available other valid and collectible insurance. or would have such insurance but for exhaustion of its limits, or but for application of one of its exclusions. A separate limit of insurance and deductible apply to such property of others. See LIMITS OF INSURANCE as amended below. CNA74705XX (1-15) Page 12 of 17 The Conc1nencal Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No: 5 Copyngt< CNA Al R,glllS -lndudos oopynghled matenal of Insurance SeMcn Office Inc , -b.,..,......,.. iiiiii !!!!!!!!!!! II CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement B. Under COVERAGES, Coverage A -Bodily Injury and Property Damage liability, the paragraph entitled Exclusions is amended to delete its last paragraph and replace it with the following: Exclusions c. through n. do not apply to damage by fire to premises while rented to a Named Insured or temporarily occupied by a Named Insured with permission of the owner, nor to damage to the contents of premises rented to a Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in LIMITS OF INSURANCE. C. The following paragraph is added to LIMITS OF INSURANCE: Subject to 5. above, $25,000 is the most the Insurer will pay under Coverage A for damages arising out of any one occurrence because of the sum of all property damage to borrowed tools or equipment, and to other personal property of others in the Named lnsured's care, custody or control, while being used in the Named lnsured's operations away from any Named lnsured's premises. The Insurer's obligation to pay such property damage does not apply until the amount of such property damage exceeds $1,000. The Insurer has the right but not the duty to pay any portion of this $1 ,000 in order to effect settlement. If the Insurer exercises that right, the Named Insured will promptly reimburse the Insurer for any such amount. 0 . Paragraph 6., Damage To Premises Rented To You Limit, of LIMITS OF INSURANCE is deleted and replaced by the following: 6. Subject to Paragraph 5. above, (the Each Occurrence Limit), the Damage To Premises Rented To You Limit is the most the Insurer will pay under Coverage A for damages because of property damage to any one premises while rented to the Named Insured or temporarily occupied by the Named Insured with the permission of the owner, including contents of such premises rented to the Named Insured for a period of 7 or fewer consecutive days. The Damage To Premises Rented To You Limit is the greater of: a. $500,000; or b. The Damage To Premises Rented To You Limit shown in the Declarations. E. Paragraph 4.b.(1 )(a)(II) of the Other Insurance Condition is deleted and replaced by the following: (ii) That is property insurance for premises rented to the Named Insured, for premises temporarily occupied by the Named Insured with the permission of the owner; or for personal property of others in the Named lnsured's care, custody or control; 16. LIQUOR LIABILITY Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Liquor liability. This LIQUOR LIABILITY provision does not apply to any person or organization who otherwise qualifies as an addItIonal insured on this Coverage Part. 17. MEDICAL PAYMENTS A. LIMITS OF INSURANCE is amended to delete Paragraph 7. (the Medical Expense Limit) and replace it with the following: 7. Subject to Paragraph 5. above (the Each Occurrence Limit), the Medical Expense Limit is the most the Insurer will pay under Coverage C -Medical Payments for all medical expenses because of bodily injury sustained by any one person. The Medical Expense Limit is the greater of: (1) $15,000 unless a different amount is shown here: $N,NNN,NNN,NNN; or (2) the amount shown in the Declarations for Medical Expense Limit. CNA74705XX (1-15) Page 13 of 17 The Continental Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No: 5 Copyngtc CW. M Rigla ROHMld ln<aldol oopyl'lghled material ol ltllurwlce S--Offlco lne, -Ila~ CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement B. Under COVERAGES, the Insuring Agreement of Coverage C -Medical Payments is amended to replace Paragraph 1.a.(3)(b) with the following: (b) The expenses are incurred and reported to the Insurer within three years of the date of the accident; and 18. NON-OWNED AIRCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Llablllty, the paragraph entitled Exclusions is amended as follows: The exclusion entitled Aircraft, Auto or Watercraft is amended to add the following: This exclusion does not apply to an aircraft not owned by any Named Insured, provided that: 1. the pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States of America or Canada, designating that person as a commercial or airline transport pilot; 2. the aircraft is rented with a trained, paid crew to the Named Insured; and 3. the aircraft is not being used to carry persons or property for a charge. 19. NON-OWNED WATERCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete subparagraph (2) of the exclusion entitled Aircraft, Auto or Watercraft, and replace it with the following. This exclusion does not apply to: (2) a watercraft that is not owned by any Named Insured, provided the watercraft is: (a) less than 75 feet long; and (b) not being used to carry persons or property for a charge. 20. PERSONAL ANO ADVERTISING INJURY-DISCRIMINATION OR HUMILIATION A. Under DEFINITIONS, the definition of personal and advertising Injury is amended to add the following tort: Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. B. Under COVERAGES, Coverage B -Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to: 1, delete the Exclusion entitled Knowing Violation Of Rights Of Another and replace it with the following: This insurance does not apply to: Knowing Violation of Rights of Another Personal and advertising injury caused by or at the direction of the Insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury. This exclusion shall not apply to discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is not done intentionally by or at the direction of: (a) the Named Insured; or (b) any executive officer, director, stockholder, partner, member or manager (1f the Named Insured is a limited liability company) of the Named Insured. 2. add the following exclusions: CNA74705XX (1-15) Page 14 of 17 The Conc1nencal Insur ance Co. Insured Name: EXTENET SYSTEMS, INC. Pohcy No: 4013130714 Endorsement No. 5 Ccpyoghl CNA M Rq,ts __, .-oopynghled matenal ol lmu,anca S..V.C.. Offia, Inc., 'Mlh b penras,on -= CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement This insurance does not apply to: Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any Insured. Premises Related Discrimination discrimination or humiliation arising out or the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any Insured. Notwithstanding the above, there is no coverage for fines or penalties levied or imposed by a governmental entity because or discrimination. The coverage provided by this PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION Provision does not apply to any person or organization whose status as an Insured derives solely from Provision 1. ADDITIONAL INSURED of this endorsement; or attachment of an additional insured endorsement to this Coverage Part. This PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION Provision does not apply to any person or organization who otherwise qualifies as an additional insured on this Coverage Part. 21 . PERSONAL AND ADVERTISING INJURY· CONTRACTUAL LIABILITY A. Under COVERAGES, Coverage B -Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Contractual Liability. B. Solely for the purpose of the coverage provided by this PERSONAL AND ADVERTISING INJURY . CONTRACTUAL LIABILITY provision, the following changes are made to the section entitled SUPPLEMENTARY PAYMENTS-COVERAGES A AND B: 1. Paragraph 2.d. is replaced by the following: d. The allegations in the suit and the information the Insurer knows about the offense alleged in such suit are such that no conflict appears to exist between the interests of the Insured and the interests of the indemnitee; 2. The first unnumbered paragraph beneath Paragraph 2.f.(2)(b) is deleted and replaced by the following: So long as the above conditions are met, attorneys fees incurred by the Insurer in the defense of that indemnitee, necessary litigation expenses incurred by the Insurer, and necessary litigation expenses incurred by the indemnitee at the Insurer's request will be paid as defense costs. Such payments will not be deemed to be damages for personal and advertising Injury and will not reduce the limits of insurance. C. This PERSONAL AND ADVERTISING INJURY • CONTRACTUAL LIABILITY Provision does not apply if Coverage B -Personal and Advertising Injury Liability is excluded by another endorsement attached to this Coverage Part. This PERSONAL AND ADVERTISING INJURY · CONTRACTUAL LIABILITY Provision does not apply to any person or organization who otherwise qualifies as an additional insured on this Coverage Part. 22. PROPERTY DAMAGE -ELEVATORS A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended such that the Damage to Your Product Exclusion and subparagraphs (3), (4) and (6) of the Damage to Property Exclusion do not apply to property damage that results from the use of elevators. CNA74705XX (1-15) Page 15 of 17 The Continental Insurance Co. Insured Name: EXTENET SYSTEMS, INC . Policy No: 4013130714 Endorsement No· 5 Copyngt< CHAM Rights -lndudeo c:cpyrtghOod motorlal ol tnou,v,ce 5eMceo Offloe Inc.. With a~ ~NA CNA PARAMOUNT Contractors' General Liability Extension Endorsement B. Solely for the purpose of the coverage provided by this PROPERTY DAMAGE -ELEVATORS Provision, the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of lhe other insurance, whether primary, excess, contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 23. SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS-COVERAGES A AND B is amended as follows: A. Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and B. Paragraph 1.d, is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 24. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named lnsured's Coverage Part, the Insurer will not deny coverage under this Coverage Part because of such failure. 25. WAIVER OF SUBROGATION -BLANKET Under CONDITIONS. the cond1hon enbtled Transfer Of Rights Of Recovery Against Others To Us Is amended to add the following The Insurer waives any nght of recovery the Insurer may have against any person or organization because of p<!}'ments the Insurer makes for In1ury or damage ansIng out of 1. the Named lnsured's ongoing operations or 2. your work included In the products-COl1.lJlleted operations hazard However this waiver applies only when the Named Insured has agreed In wntlng lo waive such rights of recovery In a wntten contract or written agreement and on_ly 1f such contract or agreement 1. Is In effect or becomes effective dunng the term of this Coverage Part. and 2. was executed pnor to the bodily Injury property damage or personal and advertising Injury gIvIng nse to the claim 26. WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Note: The following provision does not apply to any public construction project in the state of Oklahoma, nor to any construcbon project In the stale of Alaska. that is not permitted to be insured under a consolidated (wrap-up) insurance program by applicable state statute or regulation. If the endorsement EXCLUSION -CONSTRUCTION WRAP-UP is attached to this policy, or another exclusionary endorsement pertaining to Owner Controlled Insurance Programs (O.C.I.P.) or Contractor Controlled Insurance Programs (C.C.I.P.) is attached, then the following changes apply: A. The following wording is added to the above-referenced endorsement: With respect to a consolidated (wrap-up) insurance program project in which the Named Insured is or was involved, this exclusion does not apply to those sums the Named Insured become legally obligated to pay as damages because of: 1. Bodily Injury, property damage, or personal or advertising Injury that occurs during the Named lnsured's ongoing operations at the project, or during such operations of anyone acting on the Named lnsured's behalf; nor CNA74705XX (1-15) Page 16 of 17 The Continent al Insurance Co. Insured Name: EXTENET SYSTEMS, INC. Pohcy No: 4013130714 Endorsement No: 5 Copyngl-< CNA Al R,ghts ReseM>d. lndudeo copynghled matenal cl Insurance S..V.C.s Offioo Inc , WICh ,to - CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement 2. Bodily injury or property damage included within the products-completed operations hazard that arises out of those portions of the project that are not residential structures. B. Condition 4. Other Insurance is amended to add the following subparagraph 4.b.(1 )(c): This insurance is excess over: (c) Any of the other insurance whether primary, excess, contingent or any other basis that is insurance available to the Named Insured as a result of the Named Insured being a participant in a consolidated (wrap-up) insurance program, but only as respects the Named lnsured's involvement in that consolidated (wrap-up) insurance program. C. DEFINITIONS is amended to add the following definitions: Consolidated (wrap-up) Insurance program means a construction, erection or demolition project for which the prime contractor/project manager or owner of the construction project has secured general liability insurance covering some or all of the contractors or subcontractors involved in the project, such as an Owner Controlled Insurance Program (0.C.1.P.) or Contractor Controlled Insurance Program (C.C.1.P.). Residential structure means any structure where 30% or more of the square foot area is used or is intended to be used for human residency, including but not limited to: 1. single or multifamily housing, apartments, condominiums, townhouses, co-operatives or planned unit developments; and 2. the common areas and structures appurtenant to the structures in paragraph 1. (including pools, hot tubs, detached garages, guest houses or any similar structures). However, when there Is no individual ownership of units, residential structure does not include military housing, college/university housing or dormitories, long term care facilities, hotels or motels. Residential structure also does not include hospitals or prisons. This WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Provision does not apply to any person or organization who otherwise qualifies as an additional insured on this Coverage Part. All other terms and conditions of the Policy remain unchanged. This endorsement. which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect I on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA74705XX (1-15) Page 17 of 17 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No· 4013130714 Endorsement No: 5 Ccpyrigl'C CHA 1'J Rights R__, Includes c:c,pyrlghted material ol lnlunlnce S.....-Offlce Inc., -u pomw6i<>n iiiiii - CNA CNA PARAMOUNT Primary and Noncontributory -Other Insurance Condition Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART It is understood and agreed that the condition entitled Other Insurance is amended to add the following: Primary And Noncontributory Insurance Notwithstanding anything to the contrary, this insurance is primary to and will not seek contribution from any other insurance available to an additional insured under this policy provided that: a. the additional insured is a named insured under such olher insurance; and b. the Named Insured has agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA74987XX (1-15) Page 1 of 1 The Conti nental Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No· 4013130714 Endorsement No· 12 CopyngN CHA IJ Rlgtl1s __, ln<:MlM ccpyright9d INlerial ol lnouranc:e SeMceo Offlce Ire., wiCh iU ~ iiiiii = ;;;;;;;;; General liability Policy -30 Days NOC CNA It is understood and agreed that: CNA PARAMOUNT Policy Holder Notice -Countrywide If the Named Insured has agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if the Insurer cancels a icy term described on that Certificate of Insurance for any reason other than nonpayment of premium. then notice of cancellation will be provided to such Certificate holders at least 30 days In advance of the date cancellation Is effective If notice is mailed, then proof of mailing to the last known mailing address of the Certificate holder on file with the Agent of Record will be sufficient to prove notice. Any failure by the Insurer to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon the Insurer or the Agent of Record. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA75014XX (1-15) Page 1 of 1 The Continental Insurance Co . Insured Name: EXTENET SYSTEMS, INC. Policy No: 4013130714 Endorsement No· 1 C<>pyngtw CHA Al Rlghls R--.,.. oopyrighled material ol ~ SeMc:.o Offloo, Inc.. -u -io,, POLICY NUMBER: 4013130681 COMMERCIAL AUTO CA 20 48 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED FOR COVERED AUTOS LIABILITY COVERAGE This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are "insureds" for Covered Autos Liability Coverage under the Who Is An Insured provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. EXTENET SYSTEMS, INC. SCHEDULE Name Of Person(s) Or Organization(s): SEE ENDORSMENT Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Each person or orgarnzahon shown in the Schedule 1s an "insured" for Covered Autos Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in Paragraph A.1. of Section II -Covered Autos Llab1hty Coverage in the Business Auto and Motor Carrier Coverage Forms and Paragraph D.2. of Section I -Covered Autos Coverages of the Auto Dealers Coverage Form. CA20481013 Copyright, Insurance Services Office, Inc., 2011 Page 1 of 1 iiiii iiiii = = -- POLICY NUMBER P 4013130681 POLICY CHANGES INSURED NAME AND ADDRESS EXTENET SYSTEMS, INC . 3030 WARRENVILLE RD STOP 340 LISLE, IL 60532-3633 CA2048 DESIGNATED INSURED BLANKET This Change Endorsement changes the Policy. Please read it carefully. This Change Endorsement is a part of your Policy and takes effect on the effective date of your Policy, unless another effective elate is shown. THIS ENDORSEMENT CHANGES THE POLICY . PLEASE READ IT CAREFULLY . DESIGNATED INSURED BLANKET ANY PERSON OR ORGANIZATION THAT THE NAMED INSURED IS OBLIGATED TO PROVIDE INSURANCE WHERE REQUIRED BY A WRITTEN CONTRACT OR AGREEMENT TS AN TNSORF.O , Rll1' ONLY WTTH RF.SPF.CT 1'0 LEGAL RESPONSTBILTTY FOR ACTS OR OMISSIONS OF A PERSON OR ORGANIZATION FOR WHOM LIABILITY COVERAGE IS AFFORDED UNDER THIS POLICY . G-56015-B (ED. 11/91) ExteNet Systems, Inc. Commercial Auto Policy Number 4013130681 Primary coverage wording 4. Loss Payment -Physical Damage Coverages At our option. we may: a. Pay for, repair or replace damaged or stolen property; b. Return the stolen property, at our expense. We will pay for any damage that results to the "auto" from the theft; or c. Take all or any part of the damaged or stolen property at an agreed or appraised value. If we pay for the "loss", our payment will include the applicable sales tax for the damaged or stolen property. 5. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after "accident" or 'loss" to impair them. B. General Conditions 1. Bankruptcy Bankruptcy or insolvency of the "insured" or the "insured's" estate will not relieve us of any obligations under this Coverage Form. 2. Concealment, Misrepresentation Or Fraud This Coverage Form is void in any case of fraud by you at any time as it relates to this Coverage Form. It is also void if you or any other "insured", at any time, intentionally conceals or misrepresents a material fact concerning: a. This Coverage Form; b. The covered "auto"; c. Your interest in the covered "auto"; or d. A claim under this Coverage Form. 3. Llberallzatlon If we revise this Coverage Form to provide more coverage without additional premium charge, your policy will automatically provide the additional coverage as of the day the revision is effective in your state. 4. No Benefit To Bailee -Physical Damage Coverages We will not recognize any assignment or grant any coverage for the benefit of any person or organization holding, storing or transporting property for a fee regardless of any other provision of this Coverage Form. 5. Other Insurance a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance. However. while a covered "auto" which is a "trailer" is connected to another vehicle, the Covered Autos Liability Coverage this Coverage Form provides for the "trailer" is: (1) Excess while it is connected to a motor vehicle you do not own; or (2) Primary while it is connected to a covered "auto" you own. b. For Hired Auto Physical Damage Coverage, any covered ·auto· you lease, hire, rent or borrow is deemed to be a covered ·auto" you own. However. any "auto· that is leased, hired, rented or borrowed with a driver Is not a covered ·auto." c. Regardless of the provisions of Paragraph a. above this Coverage Form's Covered Autos Liability Coverage 1s primary for any ilab1ilty assumed under an "insured contract • d. When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or pnmary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. 6. Premium Audit a. The estimated premium for this Coverage Form is based on the exposures you told us you would have when this policy began. We will compute the final premium due when we determine your actual exposures. The estimated total premium will be credited against the final premium due and the first Named Insured will be billed for the balance, if any. The due date for the final premium or retrospective premium is the date shown as the due date on the bill. If the estimated total premium exceeds the final premium due, the first Named Insured will get a refund. b. If this policy is issued for more than one year, the premium for this Coverage Form will be computed annually based on our rates or premiums in effect at the beginning of each year of the policy. CAOO 011013 Copyright, Insurance Services Office, Inc., 2011 Page 9 of 12 iiiii POLICY NUMBER: 4013130681 COMMERCIAL AUTO CA044410 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. EXTENET SYSTEMS , INC. SCHEDULE Name(s) Of Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION FOR WHOM OR WHICH YOU ARE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT TO OBTAIN TH:S WAIVER FROM US . YOU MUST AGREE TO ~HAT REQUIREMENT PRIOR TO LOSS . Information required to comolete this Schedule, if not shown above, will be shown in the Declarations. The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organizabon(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the ·accident" or the "loss· under a contract with that person or organization. CA04441013 Copyright. Insurance Services Office, Inc., 2011 Page 1 of 1 iiiii ExteNel Systems, Inc. Commercial Auto Policy Number 4013130681 eNA NOTICE OF CANCELLATION TO CERTIFICATEHOLDERS It is understood and agreed that: CNA68021XX (Ed. 02/13) If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for an reason other than non~ment of premium. then notice of cancellation will be provided to such Cert1ficateholders at least 30 days ,n advance of the date cancellation ,s effectrve If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation. or impose any liability or obligation upon us or the Agent of Record. CNA68021XX (Ed. 02/13) Page 1 of 1 Copyright, CNA Al R,g/lls Resenied CA Workers' Comp Policy CNA Workers Compensation And Employers Liability Insurance Policy Endorsement I BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One -Workers' Compen1ation ln1uranc.e G. Recovery From Others and Part Two • Employers' l iability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE -Refer to the Schedule of Operations The charge will be an amount to which you and we agree that is a percentage of the total standard premium for California exposure. The amount is 2%. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. ExteNet Systems, Inc. Form No G-19160-B (11-19971 Endo<semen1 No 2. Page 1 or 1 Undefwnling Company American Casuahy Company or Reading, Pennsylvania, 333 S. Wabash Ave. Chicago. IL 60604 " Copyright CNA All Rights Reserved. Policy No: WC 6 56871849 PollC)I Page 32 or 46 Texas WOS endorsement -All Other States policy CNA Workers Compensation And Employers Liability Insurance Policy Endorsement I TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1 . 0 Specific Waiver Name of person or organization IBJ Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2% percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Advance Premium: Refer to Schedule of Operations All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy. unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. ExteNet Systems, Inc. Form No WC 42 03 04 B (06-2014) End<nemenl No 59, Page 1 ol 1 Underwntlng Company American Casuahy Company of Reading. Pennsylvania. 333 S Wabash Ave Chicago. IL 60604 Polley No WC 6 56871821 Polley Page 259 ol 272 e Copyright 2014 National Council on Compensation Insurance. Inc. An Rights Reserved. All Other States endorsement -All Other States policy CNA Workers Compensation And Employers Liability Insurance Policy Endorsement I WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Any Person or Organization on whose behalf you are required to obtain this waiver of our right to recover from under a written contract or agreement. The premium charge for the endorsement is reflected in the Schedule of Operations. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Datel is shown below, and expires concurrently with said policy unless another expiration date is shown below. ExteNet Systems, Inc. Form No WC 00 0~ 13104-1~841 Endorsement No. 4, Page 1 or 1 Underwriting Company· American Casualty Company or Reading, Pennsylvania, 333 S Wabash Ave. Chicago, IL 60604 Copyright 1983 Nauonal Cooncil on Compensation Insurance. Policy No WC 6 568 71821 Policy Page. 188 or 272 All Other States Workers' Comp policy NOC endt CNA Workers Compensation And Employers Liability Insurance Policy Endorsement I NOTICE OF CANCELLATION TO CERTIFICATEHOLDERS It is understood and agreed that: If you have agreed under wrinen contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the .Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. Form No: CC68021 A (02-20131 Endorsement Effective Date: Encforsemenr E11piration Date· Underwriting Company: American Casualty Company of Reading, Pennsylvania, 333 S Wabash Ave, Chicago, IL 60604 ExteNet Systems, Inc. Form No CC68021A !02-2013\ Endorsement No. 1, Page 1 ol 1 Underwriting Company Amencan Casualty Company of Reading, Pennsylvania, 333 S. Wabash Ave Chicago IL 60604 « CNA All Rights Reserved. Policy No we s 56871s21 Policy Page 119 of 272 CA Workers' Comp policy NOC endt CNA Workers Compensation And Employers Liability Insurance Policy Endorsement I NOTICE OF CANCELLATION TO CERTIFICATE HOLDERS It is understood and agreed that: If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers. takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. Form No: CC6802 t A 102-20 t 31 Endorsement Effective Date: Endorsement No: 1; Page: 1 of 1 Endorsement Expiration Date: Policy No: we 6 56871849 Underwriting Company: American Casualty Company of Readmg, Pennsylvania, 333 S Wabash Ave, Policy Page: 30 of 46 Chicago. IL 60604 ExteNet Systems, Inc. Form No. CC68021A 102-20131 Endo<sement No. 1, Page 1 of 1 Underwnung Company American Casualty Company of Reading. Pennsylvania. 333 S. Wabash Ave Chicago IL 60604 CNA All Rights Reserved. Policy No WC 6 56871849 Policy Page 30 of 46 CNA CNA Paramount Excess and Umbrella Liability Policy Endorsement I ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following: PARAMOUNT EXCESS AND UMBRELLA POLICY It is understood and agreed that: This endorsement identifies persons or organizations who are Additional Insureds under the section entitled WHO IS AN INSURED of the policy form. The persons or organizations shown in the Schedule below are Additional Insureds but only if included as insureds under the provisions of the scheduled underlying insurance shown in the Declarations of this policy and then only for the same coverage, except for limits of liability, afforded under such underlying insurance. SCHEDULE Additional Insured Blanket as required by written contract All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date} is shown below, and expires concurrently with said policy unless another expiration date is shown below. Form No. CNA87134XX 110-20161 Policy No: CUE 6056871852 Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 7; Page: 1 of 1 Policy Page: 54 of 56 Underwriting Company: The Continental Insurance Company, 333 S Wabash Ave, Chicago, IL 60604 ExteNet Sytems, Inc. Form No CNA87134XX 110-20161 Endorsement No. 7: Page 1 of 1 Underwnting Company The Continental Insurance Company. 333 S. Wabash Ave. Chicago IL 60604 Copyright CNA All Right! Reserved. Policy No. CUE 6056871852 Policy Page SO of 56 Primary/Non Contributory wording in form on Umbrella policy CNA Paramount Excess and Umbrella liability Policy or organization which may be liable to the Insured because of injury or damage to which this insurance may also apply; and vi. will not voluntarily make a payment, except at its own cost, assume any obligation, or incur any expense, other than for first aid, w ithout the Insurer's prior consent. 3. Cooperation With respect to both Coverage A • Excess Follow Form Liability and Coverage B -Umbrella Liability, the Named Insured will cooperate with the Insurer in addressing all claims required to be reported to the Insurer in accordance with this paragraph 0 . Notice of Claims/Crisis Management Event/Covered Accident, and refuse, except solely at its ow n cost, to voluntarily, without the Insurer's approval, make any payment, admit liability, assume any obligation or incur any expense related thereto. P. Notices Any notices required to be given by an Insured shall be submitted in writing to the Insurer at the address set forth in the Declarations of this Policy. Q. Other Insurance If the Insured is entitled to be indemnified or otherwise insured in whole or in part for any damages or defense costs by any valid and collectible other insurance for which the Insured otherwise would have been indemnified or otherwise insured in whole or in part by this Policy, the limits of insurance specified in the Declarations of this Policy shall apply in excess of, and shall not contribute to a claim, incident or such event covered by such other insurance. With respect to Coverage A -Excess Follow Form liability only, if: a. the Named Insured has agreed m writing in a contracLor agceement with a per.son o entity that this insurance would be__primary and would no se.ek contribution from any other insurance ava1labla, b. Underlying Insurance includes that person or entity as an additional insured; and c. Underlying Insurance provides coverage on a primary and noncontributory basis as respects that person or entity; then this insurance is primary to and will not seek contribution from any insurance policy where that person or entity is a named insured. R. Premium All premium charges under this Policy will be computed according to the Insurer's rules and rating plans that apply at the inception of the current policy period. Premium charges may be paid to the Insurer or its authorized representative. S. In Rem Actions A quasi in rem action against any vessel owned or operated by or for a Named Insured, or chartered by or for a Named Insured, will be treated in the same manner as though the action were in personam against the Named Insured. T. Separation of Insureds Except with respect to the limits of insurance, and any rights or duties specifically assigned in this Policy to the First Named Insured, this insurance applies: 1. as if each Named Insured were the only Named Insured; and 2. separately to each Insured against whom a claim is made. U. TransfeiY of Interest ExteNet Systems. Inc. Fonn No: CNA75504XX 103-20151 Polley Page. 21 of 32 Underwnling Company The Conbnental Insurance Company 333 S. Wabash Ave. Chicago, IL 60604 • Copyright CNA All Rights Reserved. Polley No CUE 6056871852 Pol,cy Page 33 of 56 Umbrella Wavier of Subrogation wording in form CNA CNA Paramount Excess and Umbrella Liability Policy Assignment of interest under this policy shall not bind the Insurer unless its consent is endorsed hereon. V. Unintentional Omission Based on Insurer's reliance on the Named lnsured's representations as to existing hazards, if the Named Insured should unintentionally fail to disclose all such hazards at the effective date of this Policy, the Insurer will not deny coverage under this Policy because of such failure. W. Waiver of Rights of Recovery The Insurer waives any right of recovery It may have against any person or orga111zatIon becaus of payments the Insurer makes under this Pohcy 1f the Named Insured has agreed In writmg to waive such rights of recovery on a contract or agreement, and only 11 the contract or agreement: 1. 1s in effec or be.comes effective during the_policy period; and 2. was executed prior to loss. VII. DEFINITIONS For purposes of this Policy, words in bold face type, whether expressed in the singular or the plural, have the meaning set forth below. Advertisement means a notice that is broadcast or published to the general public or specific market segments about the Named lnsured's goods. products or services for the purpose of attracting customers or supporters. For the purposes of this definition: A. notices that are published include material placed on the Internet or on similar electronic means of communication; and B. regarding web-sites, only that part of a web-site that is about the Named lnsured's goods, products or services for the purposes of attracting customers or supporters is considered an advertisement . Aircraft means any machine or device that is capable of atmospheric flight. Arbitration proceeding means a formal alternative dispute resolution proceeding or administrative hearing to which an Insured is required to submit by statute or court rule or to which an Insured has submitted with the Insurer's consent. A sbestos means the mineral in any form whether or not the asbestos was at any time airborne as a fiber, particle or dust, contained in or formed a part of a product, structure or other real or personal property, carried on clothing, inhaled or ingested, or transmitted by any other means. Authorized Insured means any executive officer, member of the Named lnsured's risk management or in-house general counsel's office, or any employee authorized by the Named Insured to give or receive notice of a claim. Auto means: A. a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or B. any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However, auto does not include mobile equipment. Bodily injury means bodily injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of the bodily injury, sickness or disease. Claim means a: A. suitHtrn No· CNA75504XX 103-2015) Pol;cv No· CUE 6056871852 Policy Page: 22 of 32 Underwriting Company· The Continental Insurance Company, 333 S Wabash Ave. Chicago, IL 60604 Policy Page: 34 of 56 ExteNet Systems, Inc Fonn No CNA75504XX (03-2015) Pohcy Page 22 of 32 Unde,wnhng Company The Conunental Insurance Company 333 S Wabash Ave Chicago. IL 60604 c Copyright CNA All Rights Reserved. Policy No CUE 6056871852 Policy Page· 34 ol 56 Umbrella 30 Days NOC endorsement CNA CNA Paramount Excess and Umbrella Liability Policyholder Notice I POLICY HOLDER NOTICE · COUNTRYWIDE It is understood and agreed that: If the Named Insured has agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if the Insurer cancels a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificate holders at least 30 days In advance--of the.-date--cancellat1on Is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificate holder on file with the Agent of Record will be sufficient to prove notice. Any failure by the Insurer to notify such persons or organizations w ill not extend or Invalidate such cancellation, or impose any liability or obligation upon the Insurer or the Agent of Record. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. ExteNet Systems, Inc. Form No CNA75041XX (01-2015\ Endorsement No 1. Page 1 of 1 Unde<wnt1ng Company-The Continental Insurance Company, 333 S Wabash Ave Chicago, IL 60604 Copyright CNA All Rights Reserved. Policy No: CUE 6056871852 Policy Page 3 of 56